Reckitt Benickser in an attempt to transfer proceedings
pending forth the Controller, moved to the High Court of Delhi
vide Reckitt Benickser Australia Pty. Ltd. and Anr. v. R.N.
Impex and Ors. [2008 (37) 262 (Del)]. In the course of
revealing the background to the Court, they submitted that a
suit for permanent injunction had been filed by them against
R.B. Impex alleging infringement of two of its designs. The
defences as enshrined in Section 19 were availed of. On
initiation of cancellation of proceedings by one of the
defendants (different from Impex) the Controller of Designs
framed an issue as to the viability of cancelling the
The proceedings forth the controller, having completed
hearings from both the parties, the orders was reserved. An
earlier application to stay the proceedings was rejected by the
controller. A request to transfer the proceedings to High Court
was also not adhered to stating that no directions to that
effect had been received from the High Court. Reckitt Benickser
also admitted that they were aware that the mark was liable to
be cancelled on account of prior publication.
Reckitt Benickser averred that in view of the defence as
under Section 19 being raised, the case being one of
infringement ought to be transferred to the High Court. They
averred that under Section 22(4), the controller was not the
appropriate authority to decide a question on infringement.
Examining the provision, the Court opined that the Section has
not taken into its ambit the proceedings pending under Section
19. The Court observed that if a pending suit before a
controller was to be transferred to the High Court, the
legislature would have made an express provision to the same,
and an absence of it depicts the absence of Legislative intent
to do so. They stated that the High Court was a Court of Appeal
against the order of the Controller, and that it was only
proper that issue of cancellation of designs pending before the
District Court be decided by the High Court.
An analogy to Section 107 of the Trade Marks Act 1958 was
drawn, whereby the High Court had the jurisdiction to decide
applications for rectification of register, while the same was
not provided for under the Designs Act. The Court however, also
noted that the same had been withdrawn vide an amendment to the
Trade Marks Act, 1999. The Court ruled that transfer of the
proceedings from the controller to the High Court was outside
the scope of the Act and that it was improper to take away the
powers of the Controller to decide pending proceedings before
The interplay of law and authority as in the case discussed
often demands review of statutes and taking a peep into the
legislative intent. In a country, where legal recourse in
Courts, is a well-liked option for parties, it is all the more
necessary to decide as to what litigations may be brought forth
the Court and what be disposed off by the quasi-judicial body
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