In Veeplast Houseware Private
Ltd (Plaintiff) v Bonjour International & Anr
(Defendant), the dispute was with regard to the design of a water
jug, which Veeplast Houseware had conceptualized and created. Upon
becoming aware of use of the said design by the Defendant on their
water jugs being sold under the name "BONJOUR MAHARAJA",
Veeplast alleged that the design used by the Defendant was
identical to their registered design, and therefore sought an
injunction, restraining the defendants from manufacturing ,
selling, offering for sale and distributing any water jug bearing a
design which amounted to infringement of the registered design of
the Plaintiff company.
The suit was contested by Defendant
No.1 on the premise that Veeplast Houseware had no right to seek
design registration in respect of water jug in entirety. A perusal
of the Registration Certificate issued by the Controller General of
Patents, Designs and Trademarks, revealed that the novelty in the
design was imputed to the shape and configuration of the water jug
and not the water jug as a whole.
The Defendant further relied on the
provisions contained in Section 22(3) of the Designs Act, and
contended that since the design registered by the Plaintiff was not
a new and original design, the registration granted to the
Plaintiff company was therefore liable to be cancelled. The Court
noted that there was no evidence on record to show that the design
got registered by the Plaintiff was being used by any other person
in India, therefore the contention that the design of the Plaintiff
was not novel could not be accepted.
The Delhi High Court referred to the
case of Eastern Engineering Co. v. Paul Engineering Co,
where the Calcutta High Court had laid down:
"The question of whether a
design is novel, is a matter of fact to be decided by the eye. That
the eye and the eye alone, is to be the judge of Identity, and is
to decide whether one design is or is not an anticipation of any,
has been laid down time and again in numberless cases. The test is
not only to look at the two designs side by side, but also apart,
and a little distance away".
It was stated by the Delhi High
Court that the legal proposition therefore was that the two
products need not be placed side by side and the matter has to be
examined from the point of view of a customer with average
knowledge and imperfect recollection. The Court further stated that
in the present case even if the two products were kept side by
side, it could not be disputed that the primary design of the jug
of Veeplast had been copied by the Defendant. The Court noted that
the primary designs of the two products were identical and the only
differences were in the design of the handle and cap.
In the case of Alert India v.
Naveen Plastics , it was held that :
" In determining whether two
designs are identical or not, it is not necessary that the two
designs should be exactly the same. The main consideration to be
applied is whether the broad features of shape, configuration,
pattern, etc. are same and if they are substantially the same then
it will be a case of imitation of the design of one by the
In the light of the reasons stated
above, the Court thus held that the Defendant could not be allowed
to continue to use the impugned design and toward this end granted
interim injunction in favour of Veeplast Houseware.
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