G.S. Patel JUDGMENT
G.S. Patel, J.
1. The Plaintiff seeks to protect its registered designs,1 alleging infringement and passing off. These are designs in respect of copper tubes. The Plaintiff's case is that the three Defendants have infringed the Plaintiff's design. It must be noted straightaway that the three Defendants are not strangers to the Plaintiff. The 1st Defendant is admittedly a former transporter for the Plaintiff's goods, and runs his own proprietorship firm. There are invoices from the 1st Defendant in respect of his transport services.2 Defendants Nos. 2 and 3 are the Plaintiff's erstwhile employees.3
2. The Plaintiff was established in 1964 and is a manufacturer, supplier and distributor of copper tubes, a business it has been doing for over 45 years. It claims to have gained considerable goodwill and reputation in that time, and says that it now has an annual turnover of Rs. 11 crores.
3. The Plaintiff's copper tubes have diverse applications, including household air-conditioning, medical gas pipelines and indoor plumbing. Several leading air-conditioner manufacturers are among the Plaintiff's clients and customers. There are endorsements from various entities including the Bhabha Atomic Research Centre and several prominent manufacturers of high-end consumer goods and appliances.
4. The Plaintiff claims that in September 2009 it conceived of a unique, novel and original shape and configuration for its tubes. The originality and novelty claimed in this design for its copper tubes is that one end of each of these tubes has an expanded bell shape. The design is purely aesthetic, according to the Plaintiff. On 17th September 2009, the Plaintiff sought registration of this design under the Designs Act, 2000. On 4th March 2010, the Registrar granted the application and issued a registration certificate No. 224751. A copy of the registration certificate is annexed.4 The corresponding Legal Proceedings Certificate is also annexed.5
5. The definition of "design" under Section 2(d) of the Designs Act, 2000 makes it clear that the design is a reference only to the features of shape, configuration, pattern, ornament or composition of lines and colours applied to any article, whether in two or three dimensions or both by any industrial process or means whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye. This design excludes any mode or principle of construction or anything which is in substance a mere mechanical device. It also does not include a trade mark, property mark or any artistic work (the latter being covered by the Copyright Act, 1957).
6. Sections 10 and 11 of the Designs Act, 2000 read thus:
"10. Register of designs.-(1) There shall be kept at the patent office a book called the register of designs, wherein shall be entered the names and addresses of proprietors of registered designs, notifications of assignments and of transmissions of registered designs, and such other matter as may be prescribed and such register may be maintained wholly or partly on computer floppies or diskettes, subject to such safeguards as may be prescribed.
(2) Where the register is maintained wholly or partly on computer floppies or diskettes under Sub-section (1), any reference in this Act to any entry in the register shall be construed as the reference to the entry so maintained on computer floppies or diskettes.
(3) The register of des........