MANU/MH/0027/1999

BomLR

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 2526 of 1996 in Suit No. 2499/1996

Decided On: 18.09.1998

Appellants:Kemp & Company and Ors.
Vs.
Respondent: Prima Plastics Ltd.

Hon'ble Judges/Coram:
R.M. Lodha

ORDER

R.M. Lodha, J.

1. This is a matter of "chair", not for power, but for infringement of registered design and passing off. In the action initiated by the plaintiffs relief is sought against the act of infringement of the 1st plaintiffs registered design of Baby chair with human face and for passing off committed by defendants by adopting similar identical design, shape, and configuration and get up in respect of Baby chair manufactured and sold by the defendants.

2. The case set up by the plaintiffs is :--

The 1st plaintiff is the manufacturer of plastic toys and plastic moulded chairs and other items such as office high tech chairs and furniture. The 1st plaintiff is manufacturing and selling plastic moulded chairs of various designs including Baby chairs with design of human face with inserts which has been registered under the Design Act bearing Registration No. 16973 sic 169723 to the 2nd plaintiff. The 2nd plaintiff is marketing and selling the said plastic moulded chairs under their registered trade mark "Moderna". The defendants are also manufacturers and dealers of moulded furniture including plastic chairs of various designs, shapes, and sizes. In the year 1994, the 1st plaintiff conceived the idea of providing a novel shape and design to baby chairs with human face on back rest with removable inserts having educational value. On 22-8-1995, the 1st plaintiff as proprietor of said new and original design filed an application for registration of the said design of chair for children at the office of the Controller of Patents and Designs. The said application ultimately resulted in issuance of Design Registration No. 169723. The certified copy of the design registration has been placed on record and marked Exhibit "A". The plaintiffs claim novelty in respect of the said design in the shape and configuration of the backrest of the chair with human face with holes and removable inserts and seat of the chair with holes. The said design registration is in class 3 and relates to chairs made of plastics. The registration of the said design is valid and subsisting. By virtue of registration of the said design, the 1st Plaintiff being registered Proprietor under the provisions of the Designs Act, 1971, claims copyrights and exclusive rights to apply the said design and to use, manufacture for the purpose of sale, sell and offer for sale such Baby chairs with human face with holes and inserts to fill up the holes having the shape and configuration as enumerated in the design registration. It is the plaintiffs case that since the 'date of the application, the 1st plaintiff has applied the shape and configuration of the said design registered under No. 169723 to plastic chairs for children in various colours such as red, yellow, blue etc. and selling the said product with the said design to their associate company, the 2nd plaintiff, who in their turn market and sell the same to the public under the registered trade mark "Moderna". The plaintiffs state that due to the unique shape, exclusive design, size and configuration of the said chair with holes creating human face with removable inserts and excellent quality of work, and material, they have acquired considerable reputation and goodwill in the market and amongst the purchasing public in short time. The plaintiffs have also spent amount in advertising of the said product by distributing pamphletsamong the dealers and retailers. In an exhibition title "Inside and outside Exhibition" held at Cross Maidan from 16-11-1995, the plaintiffs saw Baby chair model exhibited at the defendants pavilion bearing design and shape identical in all respects with design of Baby chair registered by the 1st plaintiff under Registration No. 169723. On 23-11-1995 the 1st plaintiff by their letter addressed to the defendants placed the aforesaid facts on record and brought to the notice of the defendants that they have proprietary rights in the said design. The 1st plaintiff also asked the defend........