Bombay High Court
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Bombay High Court: In a case filed by Atomberg Technologies Private Limited (‘plaintiff’) seeking temporary injunction as Polycab India Limited (‘defendant’) has a blatantly infringed by creating replica and/or reproduction of the overall design, shape, configuration, get-up of the Plaintiff’s Atomberg Renesa Ceiling Fan, R I Chagla, J. granted injunction against defendants as there is prima facie infringement of the Plaintiff’s registered design and passing off is made out as well as the balance of convenience also lies in favour of the Plaintiff and unless the reliefs as prayed is not granted, the Plaintiff will suffer irreparable loss, harm and injury.

Plaintiff is engaged in the creation of the novel and original designs for its products which involve inter-alia making of product drawings based on which mould / tool drawings are made and finally the moulds / tools are built. One of the products manufactured and sold by the Plaintiff is a Ceiling Fan named “Atomberg Renesa Ceiling Fan” which has a unique, innovative, distinctive, original and novel design formerly known as “Atomberg Gorilla Renesa Ceiling Fan” having technically sound and efficient quality and features, but also comprises inter-alia of overall unique, novel and distinctive shape and configuration having attractive and aesthetic appeal which is pleasing to eye of the consumer/ customer.

According to the Plaintiff, in or about the last week of August 2022, the Plaintiff’s representative learnt about the Defendant’s is selling fan on Flipkart and Amazon among others under the name Polycab Wizzy / Polycab Wizzy BLDC 1200 MM having shape, configuration, design and aesthetic appeal that is identical with and/or a fraudulent imitation and/or obvious imitation of the shape, configuration, design of the Plaintiff’s Atomberg Renesa Ceiling Fan for which the Plaintiff has secured design registration.

Plaintiffs fan

Defendants fan

The Court noted that visually the rival goods are nearly identical and prima facie, it appears that the Defendant has blatantly copied, created a replica and/or reproduced the overall design, shape, configuration, get up of the Plaintiff’s Atomberg Renesa Ceiling Fan. The design of the impugned fan is nothing but an imitation of the Plaintiff’s registered design and the adoption and/or use thereof cannot be matter of coincidence and/or honesty.

It further noted that the members of the trade and public upon coming across the Defendant’s impugned fan are bound to be put in a state of wonderment and are likely to be confused and deceived into believing that the fans offered by the Defendant are those of the Plaintiff and are originating from the Plaintiff and are connected in the course of the trade with the Plaintiff.

The Court thus granted the prayer sought.

[Atomberg Technologies Private Limited v. Polycab India Limited, 2022 SCC OnLine Bom 2845, decided on 14-09-2022]

Advocates who appeared in this case :

Mr. Hiren Kamod a/w Mr. Vaibhav Keni, Ms. Neha Iyer, Mr. Rohan Lopes Mr. Anees Patel and Mr. Prem Khullar i/b Legasis Partners for the Plaintiff;

Mr. Vinod Bhagat a/w Ms. Prachi Shah, Ms. Fatema Kalolwala, Mr. Atif Sayyed and Mr. Karan Khiani i/by G.S. Hegde and V.A. Bhagat for the Defendant.

*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Delhi High Court: The Single Bench of Vipin Sanghi. J. has held that on a prima facie examination, neither the Carlsberg Breweries’ claim for novelty in the design of its ‘Tuborg’ beer bottles was sustainable, and nor its claim of design infringement was made out, and therefore, rejected its application seeking an interlocutory injunction to restrain the defendant from using its bottle design.

The plaintiff (Carlsberg Breweries) had contended that the defendant, the seller of ‘Hunter’ beer, had adopted an imitation of its bottle design, label mark and trade dress, and thereby had infringed its registered bottle design and trademark, and had engaged in passing off. The defendant had submitted since a composite suit for design infringement, trademark infringement and passing off was not maintainable in view of the Full Bench decision of Delhi High Court in Mohan Lal v. Sona Paint & Hardwares, 2013 SCC Online Del 1980, the instant suit should have been confined to the issue of design infringement. The plaintiff, however, contended that the decision in Mohan Lal was per incuriam since Order II Rule 3 of CPC had been overlooked, and the Supreme Court decision in Dabur India Ltd. v. K.R. Industries, (2008) 10 SCC 595, was not correctly appreciated by the Court.

The High Court, being bound by the Full Bench decision in Mohan Lal, restricted the instant case to the aspect of design infringement. However, the Court, keeping in view of the Supreme Court decision in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, requested the Chief Justice to consider whether the decision in Mohan Lal needed reconsideration by a larger bench. Regarding the issue of design infringement, the Court noted that though the indentations/grooving found in the plaintiff’s bottle might be novel, the idea of adopting a bottle design with indentation/grooving was not new in itself. Furthermore, the Court observed that on comparing the beer bottle of the plaintiff as a whole with the beer bottle of the defendant as a whole, and it could not be said that there was any obvious or fraudulent imitation on part of the defendant. [Carlsberg Breweries v. Som Distilleries and Breweries Ltd, 2017 SCC OnLine Del 8125, delivered on May 02, 2017]