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Frontline Polymers Private Limited Vs. Aloysious C.C. - (High Court of Kerala) (10 Apr 2019)

Prior publication of design is a valid defence, provided that use of design is not in breach of good faith against proprietor of design


Intellectual Property Rights

In present matter, an interim order of injunction granted in a suit under the Designs Act, alleging piracy of a registered design, is under challenge by the Defendant. The product in respect of which the dispute has arisen between the parties is a storage water tank viz. "Hopper bottom water tank with inbuilt legs". According to the Plaintiff, he has obtained registration for the design. The contention of the Defendant is that, they have been using the said design and selling the products in the market with the said design since the year 2016.

The prior publication of the design is a valid defence, provided that the use of the design is not in breach of good faith against the proprietor of the design. According to the Defendant, they had been selling the product since the year 2016. The registration, Ext. B9 obtained by the plaintiff is only in 2018 and therefore, the defendant is protected by, prior publication of the design.

Ext. B8 is an advertisement given by the Defendant, relating to the product, in a magazine dated 20th September, 2016. Ext. B9 is the advertisement in another magazine in March 2017. Ext. B14 is the photograph taken on 16th August, 2016 in connection with the inaugural ceremony of the product. The presence of the plaintiff in the said photograph is not disputed. The Plaintiff does not have any explanation for the said flagging of ceremony held by the Defendant and his presence there. Ext. Bl5 is the certification from the central Board of Film Certification regarding the advertisement of the product in question. All the documents relate to the product in question and is much prior to the registration by the Plaintiff.

There is no circumstance to indicate that there was any understanding between the parties whereby the Defendant agreed to refrain from using or publishing the design. It cannot be held that, there is any breach of good faith against the user or publishing of the design.

The learned counsel for the Defendant undertakes that, the Defendant shall maintain accounts regarding sale of the product till the disposal of the suit, to protect the interests of the plaintiff's in so far as it may relate to damages or compensation. Prima facie case, balance of convenience and irreparable injury are all in favour of the Defendant. The order of the court below is liable to be interfered. The impugned order will stand set aside and the injunction vacated. Appeal allowed.


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