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Judgment
Govardhan, J.—Plaintiff is the appellant.
The plaintiffs case is briefly as follows: Plaintiff is engaged in the manufacture and sale of wet grinders. The conventional wet grinders, are lacking
in drainage facilities. After a great deal of research and thinking, the plaintiff invented a system and a model called ""TILTING TYPE"" wet grinder
which is a new type of grinder. This type is the first of its kind and a novel one. The plaintiff has applied to the Controller of Patents and Designs
for registration of its design of ""TILTING TYPE"" wet grinders and obtained certificates of registration under registration Nos.152396, 152397 and
152398 dated 21.10.1982. The plaintiff is therefore the exclusive owner of the registered designs and he has acquired a copyright for the exclusive
use of the same under the Indian Designs Act. This ""TILTING TYPE"" wet grinders of the plaintiff has gained a high reputation and market for its
design, get up system, quality and performance. The sixth defendant has issued a publication in the Newspapers ""DECAN HERALD"" dated
19.5.1983 offering to sell tilting type wet grinder which is a blatant copy of the plaintiff s designs. The plaintiff came to know on enquiry that
defendants 2 to 4 as partners of the first defendant are making such tilting type wet grinders, with the intention to pass off their grinders in the
market and make an illegal gain. It was at the instance of the 7th defendant. Hence the suit for mandatory injunction for directing the defendants to
surrender the TILTING TYPE grinding machines manufactured by them which are offending the plaintiffs design drawings, pamphlets, catalogues,
blocks moulding etc. The suit is for also for permanent injunction to restrain the defendants and their men from keeping the registered design of the
plaintiff''s ""TILTING TYPE"" wet grinder in the name of either of the defendants 1 and 6. The plaintiff has also prayed for rendering accounts for
the income derived by the defendants by the illegal use of the design of the plaintiff.
The defendants in their written statement, contend as follows : The first defendant has a reputation in the industrial line and the suit is filed only to
spoil his name. The plaintiff is not inventor of any design. Even if the plaintiff had registered its design, it is neither new nor original. The tilting type
of wet grinders is in use for a long time, having been manufactured by many manufacturers. The application of many manufacturers for registration
of their design are pending with Controller of Patents and Designs. One of them is one Vijayan who is the Technical Adviser of the defendants.
Since the design is neither novel nor original, and since the tilting type of wet grinders are in use, even before the registration of the plaintiff''s
design, the plaintiff has no case and the suit is liable to be dismissed.
On the above pleadings, the trial court has held that the design of plaintiff for their wet grinders have been in use even before the registration of
the same and therefore, the plaintiff is not entitled to any relief and dismissed the suit.
Aggrieved over the same, the plaintiff has come forward with this appeal.
The learned Counsel appearing for the appellant has argued that the lower court has proceeded as if, the suit is one for cancellation of the
registration of the design of the plaintiff and the appellant has not permitted any one of the defendants to manufacture wet grinders in accordance
with the design drafted by him for which registration certificate was also issued by the Controller and therefore any violation of the same would
entitle the plaintiff to get an injunction as well as a decree for accounts. The learned Counsel appearing for the appellant has also stated that the
relief of mandatory injunction has been given up, since the defendants have closed the business.
A design is nothing but a figure and measurement according to which the products are manufactured by an inventor of the same. The plaintiff s
case is that the conventional wet grinders have no facilities for draining the contents and therefore after research and thinking a model leading to a
new type of wet grinders are designed by the plaintiff and the same has been registered with the Controller of Patents and Designs who had issued
certificates for the same on 21.10.1982. These certificates issued by the Controller have also been exhibited before the trial Court as Exs. A-3 to
A-5. All the three certificates read as follows: ""Certified that the design of which a copy is annexed hereto has been registered as the number and
date given above in Class 1 in respect of an application of such design to grinding machine in the name of...."" These certificates do not indicate that
they have been issued in respect of an application of such design to ""tilting type"" grinding machines. P.W. 1 also admits the same by stating that
these certificates do not mention that they are for tilting type wet grinders. P.W. 2 is said to be the person who is helping the plaintiff. He has stated
that the certificates under Exs. A-3, A-4 and A-5 are for the entire machine. During cross-examination, he has stated that even though Column 1
of these certificate refer to the metallic part, fibre glass part and plastic part, separately, it is not specifically mentioned so in, these certificates and
the certificate has been issued for the entire machine. This column 1 is to the effect that the novelty, resides in the shape, configuration and
ornamentation of the grinding machine, as illustrated. Even there, it is not stated as ""TILTING TYPE"" grinding machine as illustrated. Therefore, the
plaintiff cannot take advantage of the certificates issued to him under Exs. A-3 to A-5 to show that this ""TILTING TYPE"" wet grinders have been
registered and registration certificate has been issued to him by the Controller.
The plaintiff has filed the suit since he has come across an advertisement in the Newspaper ""DECAN HERALD"" dated 19th May, 1983 issued
by the 6th defendant. According to the plaintiff, since this is subsequent to the registration certificate dated 21.10.1982, there is an infringement of
his design by the 6th defendant and therefore injunction has to be granted. But, it is the case of the defendants that the tilting type of wet grinders
have been manufactured by many people and their applications for registration were pending with the Controller of whom one is Mr. Vijayan who
has acted as the Technical Adviser for the defendants for manufacturing their product. The 6th defendant has categorically stated that number of
wet grinders similar to the tilting type wet grinders manufactured by the plaintiff as well as the defendants are in the market and it is not correct to
say that their product was copied from the product of the plaintiff. It is also stated by the 6th defendant that even before the registration of the
plaintiffs product under Exs. A-3 to A-5 dated 21.10.1982, there were advertisements in the Tamil Magazine ""Kungumam"" under Exs. B-4 to B-8
showing such wet grinders were already manufactured. Exs. B-5 to B-7 and B-10 are advertisements made in the Magazine ''Kungumam'' with
regard to the plaintiff s wet grinder as well as wet grinder of defendants. The defendants have also produced a pamphlet under Ex. B-9 showing
the tilting type of wet grinders marketed as ''SUMEET SUPER A-100''. According to the defendants, even though the the plaintiff s design has
been registered, since already there are wet grinders of similar type viz., tilting type in the market, the plaintiff cannot claim to be the inventor of
such type of wet grinders and the plaintiff cannot claim it as novel design. The learned Counsel appearing for the appellant would argue that there is
no necessity to mention in Exs. A-3 to A-5 that it is a tilting type wet grinder. But, it cannot be disputed that there were wet grinders in the market
of different manufacturers. Therefore, unless it is mentioned that it is a tilting type one, designed by the plaintiff, the certificates cannot be taken
advantage by the appellant. It is more so when the advertisement with regard to the products manufactured by the others, have also been made in
the Magazines and other media like Ex. B-9. In the decision reported in B.K. Plastic Industries Vs. Jayantilal Kalidas Sayani, , it has been held that
even if a design which is original but is published earlier than the date of registration, such design loses its novelty, newness on the date of
registration and will be revoked. When we approach the case on hand in the light of the above decision, the registration of the design of the plaintiff
itself is liable to be revoked since the purpose of registration of the design is to protect new designs, which are original and it is not for protecting a
design which is already in existence. We are not, at present concerned with the cancellation of the registration. The scope of the suit is to restrain
the defendants from keeping the design said to have been invented by the plaintiff and make a profit out of it. But, when the alleged design of the
plaintiff was already in existence and wet grinders were manufactured as per that design by the other manufacturers, there is no question of granting
injunction in favour of the plaintiff. It is not only published under Exs. B-4 to B-6 alone which would show that the design was already in existence,
but also Exs. B-8 and B-9 would indicate that wet grinders manufactured as per the particular design, have already been manufactured and are
available in the market. The plaintiff cannot claim that the defendant is manufacturing and selling exactly similar and same grinders which offends the
copyright of the plaintiff under the Designs Act, since these designs were not designs invented by the plaintiff afresh. The suit being one for
permanent injunction, unless the plaintiff establishes that the design said to have been invented and registered by him is a new and novel one, which
is not known to others, the plaintiff cannot succeed. These advertisements Exs. B-8 and B-9 would show that the plaintiff cannot make a claim that
his design is a new and novel one and it is infringed by the defendants. The trial Court has therefore rightly come to the conclusion that the plaintiff
is not entitled to the injunction and accounting as prayed for by him and I am of opinion that the judgment and decree of the trial Court is well-
founded and does not call for any interference by this Court.
In the result, the appeal is dismissed. No costs.