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2022 (11) TMI 36 - DELHI HIGH COURTGrant for interim injunction under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 rejected - Order XXXIX Rule 4 of the CPC - Claim for right to the exclusive use of the colours or the colour combination appearing in the Subject Design not made - third-party products available in the market, similar to subject design - novelty in respect of the combination of colours and the placement of the label indicating the maximum retail price (MRP) - registration of the Subject Design did not include any such claim of novelty - whether the Subject Design lacked novelty and originality? Whether registration of the Subject Design is proscribed under Section 4(a) and 4(c) of the Designs Act? HELD THAT:- It is not unusual for small players to copy designs, which have become popular. It is not necessary for the proprietor of a design to pursue its remedies against each dealer/manufacturer selling infringing products. It is possible that the benefits of pursuing a particular infringer may not be commensurate with the cost and effort for doing so. It is understandable that a design holder would evaluate its options including on commercial considerations - The rights of a proprietor of a registered design is not diluted merely because there are multiple infringers; the design holder retains the right to interdict infringement of the registered design notwithstanding that it has not proceeded against some of the infringers. This Court is unable to accept that a finding that the Subject Design lacked novelty and originality – which necessarily was required to be determined with reference to the date when the Subject Design was registered – could be arrived on the basis of the market survey without any evidence as to when the said products were introduced in the markets by their respective sellers. In terms of Section 4 of the Designs Act, a design, which is not new or novel or has been disclosed prior to registration or is otherwise not significantly indistinguishable from a known design or a combination of designs thereof, cannot be registered. For a design to be registered, it must be original and novel; not disclosed in any manner prior to registration; and it should be significantly distinguishable from a known design or a combination of known designs. Thus, a mere trade variant, which is a combination of known designs, would not be entitled to protection under the provisions of the Designs Act - Indisputably, if a design is not significantly distinguishable from a known design or combination of designs, it cannot be registered by virtue of Section 4(c) of the Designs Act. However, the market survey conducted by the parties would neither answer the question whether the Subject Design was original or novel at the time of registration, nor assist in determining whether the Subject Design was significantly distinguishable from the known designs at the time of registration of the Subject Design. The conclusion of the learned Single Judge is not based on the findings that the Subject Design is indistinguishable from designs that were known at the time of the registration. It is based on the, prima facie, opinion that there are products with similar designs currently available in the market. Thus the ‘prima facie’ conclusion of the learned Single Judge is not well founded. Appeal allowed.
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