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.

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