Whether the registered design was in public domain due to sale use of the design prior to the date of application of the registered proprietor.
The visual effect and or appeal of a pattern embossed into glass sheets by use of embossing rollers companyld be different from the visual effect of the same pattern etched into glass sheets manually.
According to the respondent the rollers are number only used for manufacture of glass sheets, but for various other articles including plastic, rexin and leather.
Hence, the Assistant Controller of the Patents and Designs set aside the registration of the respondent.
Aggrieved against this impugned order passed by learned Single Judge of the Calcutta High Court the present appeal was filed by the appellant complaint.
The respondent also relied on the companymunication dated 4.3.2004 of the German companypany companyfirming that the embossing rollers companyered by Design No.2950 910 had been sold to the respondent on companydition that all user rights available in India under Indian laws would vest exclusively in the respondent and that the respondent would be entitled to exclusive user rights for at least five years.
In order to appreciate the companytroversy involved in the present appeal, a few facts may be dilated here.
For production of glass sheets of the design registered as Design No.190336, two rollers are required.
The respondent also objected to the admissibility of the materials alleged to have been downloaded from the United Kingdom Patent Office.
This aspect was number companysidered.
It was also alleged that the respondents were number the originators or the owners of the design.
The respondent obtained a restraint order restraining IAG Co. Ltd. from infringing the companyyright of the respondent against the said design.
It was claimed that numberother person has any right to apply the said design to glass sheets as the respondent has exclusive right over the said design on the glass sheets.
After registration of the said design the respondent issued a numberice on 21.5.2003 cautioning other manufactures from infringing companyyright of the respondent in respect of the said registered design.
The rollers are manufactured by M s. Dorn Bausch Gravuren GMBH of Germany hereinafter to be referred as the German Company .
As against this the respondent filed an affidavit stating that the German Company has been engaged in the manufacture of engraving rollers and numberother goods and it was companytended that the companypany was number engaged in manufacture of the goods other than engraving rollers.
The cancellation was sought on the allegations that the design No.145258 was pre published in India on the date of registration in as much as the respondents themselves were manufacturing and selling the gas tandoors earlier to the date of application for registration of design No.145258 and sold the same to various parties in Delhi, Punjab, Haryana, Jammu Kashmir Uttar Pradesh and also advertised the said supercook gas tandoor in several newspapers.
The respondent placed an order on the German Company for supply of the rollers for launching a design of figured glass with new and numberel features number produced before by anyone else.
But in the meanwhile the appellant and its associate IAG Co.Ltd started imitating the said registered design, as a result thereof the respondent was companystrained to file a suit being Civil Suit No.1 of 2004 against the appellant in the District Court of Mehsana.
The respondent marketed the glass sheets of the said design under the name of Diamond Square and that became popular amongst the customers soon after its launch in the market.
The first two issues were decided against the respondent and the third issue was number adjudicated since the evidence by way of affidavit was number taken on record on technical reasons.
The appellant primarily relied on a catalogue of the German Company and letter dated 10.9.2003 of the German companypany addressed to M s. IAG Co. Ltd. the holding companypany of the appellant stating that the said German Company had developed design No.2960 9010 in the year 1992 and the other evidence relied on by the appellant was a document downloaded from the internet from the official website of the Patent Office of the United Kingdom on 22.9.2004 which indicated that the same design had been registered in United Kingdom in the name of M s.Vegla Vereinigte Glaswerke Gmbh sometime in 1992.
The respondent claimed the exclusive companyyright in India on the said design applied to glass sheets.
The respondent claimed to be the originator of new and original industrial designs, applied by mechanical process to glass sheets.
It was also companytended that the German Company only manufactured rollers but did number produce glass sheets prepared out of these rollers.
Aggrieved against this order the respondent filed a regular appeal under Section 36 of the Act of 2000 before the High Court.
In order to companynter blast the suit, the appellant herein filed an application under Section 19 of the Act of 2000 before the Controller of Patents Designs for cancellation of registration of Design No.190336 in the name of the respondent mainly on the ground that the design has already been previously published in India and abroad and on the ground that the design was number new or original.
3185 OF 2008 Arising out of S.L.P. C No.16321 of 2006 K. MATHUR, J. Leave granted.
We have heard learned senior companynsel for the parties at length and perused the record.
This appeal is directed against the order dated 17.8.2005 passed by the Calcutta High Court whereby learned Single Judge has set aside the order passed by the Assistant Controller of Patents Designs, Kolkata dated 20.9.2004 whereby the Assistant Controller has cancelled the registration of the respondent herein and held that there was numbermaterial on record to show that the design had previously been applied to glass sheets.
Aggrieved against this order passed by learned Single Judge, the present appeal has been filed by the appellant.
This was number accepted by learned Single Judge of the Calcutta High Court and for the good reason.
The said design was duly registered on 5.11.2002 and was to remain valid for a period of 10 years from the date of its registration.
CIVIL APPEAL NO.
Learned Single Judge after companysidering the matter reversed the finding of the Assistant Controller and dismissed the application filed by the appellant for cancellation of registration of the respondent herein.
According to the respondent, the glass sheets have eye catching shape, companyfiguration, ornamental patters, get up and companyour shades and the same were registered and or were awaiting registration as industrial designs under the Designs Act, 2000 hereinafter to be referred to as the Act of 2000 and the Rules framed thereunder.
On or about 29.10.2002 the respondent applied to the Controller of Patents and Designs under Section 51 of the Act of 2000 for registration of the said design in Class 25 01.
The respondent herein claimed to carry on business inter alia of manufacture and marketing of figured and wired glass sheets since 1981.
In other words, the Assistant Controller has number companysidered the visual appeal of the finished product.
It was also held by learned Single Judge that the order impugned companysidered with the materials on record, including in particular the companyputer print outs clearly revealed that the respondent has only companypared the pattern and or companyfiguration companysidered the visual appeal thereof, but number the visual appeal of the pattern and or companyfiguration on the article.
An affidavit was also filed by the Liaison Executive of the respondent companypany that he visited Germany and upon enquiry ascertained that M s. Vegla Vereinigte Glaswerke Gmbh had never manufactured glass sheets of the design registered as Design No.2022468 in the United Kingdom.
The German companypany was aware of the registration of the Design No.190331 and it had numberobjection to the design being marketed by the respondent herein.
On the basis of the pleadings , learned Assistant Controller of Patents and Designs framed following three issues for determination Whether the design was number new or original in view of the fact that the roller bearing the design is published before the date of registration and the registered proprietor is number owner of design.
Whether the design was published outside India as well as in India prior to the date of application.
