I wrote a post on the Delhi HC’s recent order and circular that seek to prevent the practice of ‘defendant masking’. The order and circular prescribe stricter checks by the registry and an undertaking from the plaintiff suggesting that the defendant arraigned as Defendant Number 1 is the main contesting defendant.
International Cycle Gears v. The Controller of Patents and Designs and Others – Calcutta High Court [May 10, 2019]
The Appellant filed an appeal against the cancellation of its registered design “COASTER BRAKE HUB” by the Assistant Controller of Patent and Designs, on the ground that the Controller failed to appreciate the difference between its registered design and a Russian design which was examined. The Court noted at the outset that the distinction in features of the two rival designs were essentially mechanical, and the Russian design was published prior to the Appellant’s design. Considering the fact that the two designs contained similar features, the Court noted that the Appellant’s design was devoid of newness and originality. Moreover, the Court observed that the Appellant’s design could have been cancelled merely on the ground that the Russian design was published before the Appellant’s design. Accordingly, the Appellant’s appeal was dismissed.
M/s. Lucky Exports v. The Controller of Patents and Designs and Others – Calcutta High Court [May 10, 2019]
The Appellant preferred an appeal to the order of the Controller rejecting the application for the cancellation of a design “COASTER BRAKE SUB ASSEMBLY”. The Court set aside the order of the Controller and observed that the Controller merely considered whether the article was merely a mechanical device but failed to consider whether the article appealed to the eye. It was further explained by the Court that as long as an article was not merely a functional device and appealed to the eye, the same was capable of design registration if it was original. The Court, however, noted that the Controller had failed to appreciate all the evidence forming part of the case. At the same time, it was observed that the Respondent had failed to establish that its design was original and hence, failed to discharge their burden. Accordingly, the Court ordered the cancellation of the Respondent’s design.
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