India: Row over Toothbrush Designs

Last Updated: 3 November 2012
Article by Kamakhya Srivastava

The concept of a design being 'original' under the Designs Act, 2000 results from an exercise of one's intellectual activity and includes designs which though old in themselves yet are new in their application. Anchor Health & Beauty Care Pvt. Ltd. has approached the Supreme Court against the decision of Calcutta High Court dismissing its appeal against the Controller's order rejecting its application seeking cancellation of Colgate Palmolive toothbrush designs. The Supreme Court has also tagged Anchor's petition with the cross-appeal filed by Colgate Palmolive Company challenging the Calcutta High Court judgment that held that Colgate's design no 180362 could not have been registered in the event of already published designs.

In a legal battle being fought over toothbrush designs, the dispute started with Colgate Palmolive registering three toothbrush designs with the Patents & Design Office and rivals Anchor Health & Beauty Care Pvt. Ltd filing petitions seeking cancellation of these designs. Anchor claimed that Colgate's designs could not be registered as the design of its similar product was already registered under the design act. After a series of hearings, the Controller of Patents & Designs held that the three models registered as toothbrushes by Colgate Palmolive satisfied the definition of "designs" under the designs law. During hearing every portion of the toothbrush – head, bristles and handle – were scrutinized. The Patent & Design Office concluded that designs were different from the products registered earlier. This was challenged by Anchor in an appeal before the Calcutta High Court (Anchor Health and Beauty Care Pvt. Ltd. vs. The Controller of Patents & Designs

AID No 7, 8 & 9 of 2008; Calcutta High Court.) While the high court upheld the Controller's order and dismissed Anchor's appeal on two toothbrush registered designs by Colgate Palmolive but ordered for the setting aside of the Controller's order on Colgate's design no. 180362 thereby allowing Anchor's third appeal.

The appeal by Anchor was filed for setting aside of the Controller's order on its applications seeking cancellation of Colgate's registered toothbrush designs and rested its case on the contention that the Colgate's registered toothbrush designs (nos. 176343, 176345 and 180362), first of all, are not designs as defined under the act and also were not new or original. The variation, if any, was only a trade variation and functional. It was also contended that the designs ought not to be on the register on grounds of prior publication as similar designs had been registered in 1996 and 1997 i.e. before the registration of Colgate's design in 1998. The earlier registered designs were argued to have same or similar neck, handle and bristles, which constitute a toothbrush, as those of Coalgate's and therefore neither the handle, neck or bristles has a distinctive eye appeal from the prior published design nor is there any distinct addition to such design. The addition, if any, is functional and therefore there is no novelty. The bristles in the prior registered design are long and short which can as well be described as zigzag bristles being proof enough of the functionality of the design taking precedence and being manifested as a trade variant rather than a novel design.

The court undertook a comparison between Colgate's designs and the cited prior published designs by Anchor of their essential features and also a determination of their date of registration. The findings culminated in Court's observation that the Controller has considered all materials, which is evident from his order that is not perverse and calls for no interference. The Court, dwelling on the concept of a design being "original" as given in the Designs Act, concluded that Colgate's design nos. 176343 and 176345 are results of an exercise of one's intellectual activity on the earlier designs and are therefore an "original" design according to the law which says that "original", in relation to a design, means originating from the author of such design and includes the cases which though old in themselves yet are new in their application. Thus these designs were held to be original, new and not prior published.

However, in case of design no 180362, the Court in view of registered design Nos. 176343 and 176345 being prior published, opined that design No. 189362 could not have been registered and therefore directed to set aside the findings of the Controller in respect thereof as it cannot be sustained. The Court remarked that the toothbrush bristles though different from those in design Nos. 176343 and 176345, is a trade variant and functional.

The Supreme Court has started hearing the case. The apex court in its treatment to the case in hand may elucidate on the essential requirements to qualify for a design registration and also on the issue whether High Court erred in failing to consider that a registered design can be cancelled on the ground of prior registration under section 19(1)(a) of the Designs Act only if the design registered prior in time is held to be identical to the subsequent design for which cancellation is sought.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Vaish Associates Advocates
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Vaish Associates Advocates
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions