Manmohan Singh, J.@mdashBy this order I shall dispose of the present application being I.A. No. 3499/2009 under Order XXXIX Rules 1 & 2 read with Section 151 CPC filed by the Plaintiffs.
2. The Plaintiffs filed the present suit for permanent injunction, restraining infringement and passing off of design registration, damages, rendition of accounts, delivery up etc.
3. It is averred in the plaint, that the Plaintiff No. 1 is a company incorporated in Belgium, and is engaged in the business of photo metrically controlled luminaries, various lighting products including street lighting fixtures and floodlights and has worldwide operations. Plaintiff No. 2 is a joint venture company of Plaintiff No. 1 in India. Plaintiff No. 1 and its group companies are operating worldwide in more than 34 countries spread over 5 continents.
4. It is contended in the plaint that the Plaintiff No. 1 conceived a new shape and configuration in luminaries and filed application for design registration under the provisions of Designs Act, 2000 and was granted design registration being Nos. 170084 and 182348. These luminaries of the Plaintiffs'' are known in the market by name of RT3 and ONYX respectively. The said luminaries are sold in India by Plaintiff No. 2, and because of their excellent quality and shape, have acquired considerable goodwill and reputation.
5. In January 2008, Plaintiff No. 2 came to know that the Defendant is selling luminaries identical to the luminaries of the Plaintiffs. The Plaintiffs served a Cease and Desist Notice dated 22.01.2009 upon the Defendant but the Defendant neither replied nor stopped infringement of the design of the Plaintiffs. It is stated in the plaint that the Defendant has adopted the impugned designs to deceive the public and encash the goodwill of the Plaintiffs and by these acts of the Defendant, the Plaintiffs have suffered loss and damage of such nature, that unless the immediate relief prayed for is not granted, the Plaintiffs will continue to suffer irreparable loss and injury.
6. It is averred in the plaint, that the Defendant is selling its goods on such low prices that it would destabilize the selling network of the Plaintiffs. The Defendant has no legal right to encroach upon the goodwill and reputation of the Plaintiffs.
7. In its written statement, the Defendant has stated that it is neither a manufacturer nor an importer, it is an authorized dealer/stockiest of product UNISTAR brand cables and capacitors and various other companies. The Defendant has not contravened any conditions enumerated in Section 22 of the Design Act, 2000. The electrical products sold by the Defendant are different in shape, size, dimension, get up and colour then that of the Plaintiffs, therefore, there is no infringement of the design of the Plaintiffs.
8. Further, it is submitted by the Defendant that the price of the products is not decided by the Defendant as it is just a dealer, therefore, it would be wrong to say that the Defendant is offering goods at such low rates that would destabilize the selling network of the Plaintiffs.
9. The present suit has been filed on the basis of two registered Design bearing Nos. 170084 as of 30.10.1995 and 182348 as of 15.05.2000. As regards Design No. 170084 as of 30.10.1995, the said Design has already expired after completing its life i.e. 15 years. The said Design has, therefore, already become public domain after the expiry of period of 15 years i.e. after 30.10.2010, therefore, no relief can be granted to the Plaintiffs pertaining to the said Design.
10. As far as Design No. 182348 as of 15.05.2010 is concerned, the said registration is still effective and valid till 15.05.2015. It is to be seen as to whether the Defendant is guilty of infringement of said Design or not. In order to prove their case, the Plaintiffs have filed various documents including the photostat copy of the Design registration bearing No. 182348 as well as the copy of the catalogue of the Plaintiffs showing the Design registration. In order to compare the Design of the Defendant, the Plaintiffs have filed the original catalogue of the Defendant as well as print out of the designer website showing infringing design. From the Design registration filed by the Plaintiffs as well as the catalogue of the Plaintiffs, it is not clear as to what are the difference and distinctiveness of the shape and configuration of the Design in question.
11. No coloured photographs or the original catalogue have been produced by the Plaintiffs. At the time of hearing also, neither the sample of the products was shown nor were the original documents filed. As far as the Defendant''s product is concerned, the Plaintiffs, as already mentioned, have filed the original catalogue of the Defendant as well as print outs. This Court has compared the relevant page 224 of the original catalogue of the Defendant i.e. Electrical Lines Price List Directory, October, 2007 as well as the print-out of the Defendant''s website and particularly Item No. 150 SL/2/1 where the advertisement of the product of the Defendant is shown i.e. 1 Ballast/Ignitor 70W. The bare perusal of the said product, as shown by the Defendant, with the product of the Plaintiffs with regard to the shape and configuration thereof, does not appear to be clear and, therefore, it is not possible for this Court to pass an interim order unless the two products are placed side by side and their clear photographs are shown. From the article of the Plaintiffs, as shown in Design registration No. 182348 as well as the copy of the catalogue of the Plaintiffs, it appears that there is no infringement of the Design of the Plaintiffs.
12. The other aspect of the matter is that issues in this matter were framed on 28.04.2010. The Plaintiffs were granted time to file the list of witnesses and the affidavits of evidence within two weeks. The matter was referred to the Joint Registrar, however, it was noticed that the Plaintiffs'' evidence was not filed. Joint Registrar granted four weeks'' time in this regard. The matter was adjourned from time to time. However, the Plaintiffs did not file the affidavits in evidence despite the fact that sufficient time was granted to the Plaintiffs to do the same. Final opportunity in this regard was granted on 15.11.2010 subject to the cost of Rs. 2,000/-. However, it appears from the record that when the matter was listed, neither any affidavit in evidence was filed nor any witness was present. It was mentioned in the order dated 03.03.2011 that no reasonable explanation was given by the Plaintiffs for non-production of the evidence, however, one last and final opportunity was given to the Plaintiffs to file the evidence within one week subject to cost of Rs. 7,000/-. It was noted in the order that if the Plaintiffs fail to file the evidence within one week, no further opportunity would be given. Thereafter, the matter was adjourned when it was listed before the court for settlement as per the suggestion of the Plaintiffs. The net result is that the Plaintiffs have failed to produce any witness in this case. Since the present application being IA No. 3499/2009 is pending disposal, therefore, I heard the learned Counsel for the parties for some time and reserved the order on 05.05.2011.
13. In view of the aforesaid reasons, I am not inclined to pass any interim order at this stage in favour of the Plaintiffs. Let the Plaintiff may adduce the evidence as directed by the Court alongwith original documents and clear copies of products of the parties in question so that the claim of the Plaintiffs can be considered after the trial of the suit.
14. In view of the above said discussions, the application is disposed of. The finding arrived at by the court on merit about the rival products shall have no bearing, when the main suit is decided on merit after the trial.
15. No costs.
