Schreder S.A. & Anr. vs Electrical Lines
2011 Latest Caselaw 3009 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

           I.A. No. 3499/2009 in CS (OS) No. 502/2009

%                                     Judgment pronounced on : 03.06.2011

SCHREDER S.A. & ANR.                       ...........Plaintiffs
                 Through: Ms. Sushant K. Thakur, Adv. with
                          Mr. Devendra Nautiyal, Adv.

           Versus


ELECTRICAL LINES                           ........Defendant
                Through: Mr. Rajbir Singh Proxy counsel
                         for Mr. V.K. Ahuja, Adv.


CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH

     1.

Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ? Yes

MANMOHAN SINGH, J

1. By this order I shall dispose of the present application being

I.A. No.3499/2009 under Order XXXIX Rules 1 & 2 read with Section

151 C.P.C. filed by the plaintiffs.

2. The plaintiffs filed the present suit for permanent injunction,

restraining infringement and passing off of design registration, damages,

rendition of accounts, delivery up etc.

3. It is averred in the plaint, that the plaintiff No.1 is a company

incorporated in Belgium, and is engaged in the business of

photometrically controlled luminaries, various lighting products including

street lighting fixtures and floodlights and has worldwide operations.

Plaintiff No.2 is a joint venture company of plaintiff No.1 in India.

Plaintiff No.1 and its group companies are operating worldwide in more

than 34 countries spread over 5 continents.

4. It is contended in the plaint that the plaintiff No.1 conceived a

new shape and configuration in luminaries and filed application for design

registration under the provisions of Designs Act, 2000 and was granted

design registration being Nos. 170084 and 182348. These luminaries of

the plaintiffs' are known in the market by name of RT3 and ONYX

respectively. The said luminaries are sold in India by plaintiff No.2, and

because of their excellent quality and shape, have acquired considerable

goodwill and reputation.

5. In January 2008, plaintiff No.2 came to know that the

defendant is selling luminaries identical to the luminaries of the plaintiffs.

The plaintiffs served a Cease and Desist Notice dated 22.01.2009 upon

the defendant but the defendant neither replied nor stopped infringement

of the design of the plaintiffs. It is stated in the plaint that the defendant

has adopted the impugned designs to deceive the public and encash the

goodwill of the plaintiffs and by these acts of the defendant, the plaintiffs

have suffered loss and damage of such nature, that unless the immediate

relief prayed for is not granted, the plaintiffs will continue to suffer

irreparable loss and injury.

6. It is averred in the plaint, that the defendant is selling its goods

on such low prices that it would destabilize the selling network of the

plaintiffs. The defendant has no legal right to encroach upon the goodwill

and reputation of the plaintiffs.

7. In its written statement, the defendant has stated that it is

neither a manufacturer nor an importer, it is an authorized dealer/stockiest

of product UNISTAR brand cables and capacitors and various other

companies. The defendant has not contravened any conditions

enumerated in Section 22 of the Design Act, 2000. The electrical

products sold by the defendant are different in shape, size, dimension, get

up and colour then that of the plaintiffs, therefore, there is no infringement

of the design of the plaintiffs.

8. Further, it is submitted by the defendant that the price of the

products is not decided by the defendant as it is just a dealer, therefore, it

would be wrong to say that the defendant is offering goods at such low

rates that would destabilize the selling network of the plaintiffs.

9. The present suit has been filed on the basis of two registered

Design bearing Nos.170084 as of 30.10.1995 and 182348 as of

15.05.2000. As regards Design No.170084 as of 30.10.1995, the said

Design has already expired after completing its life i.e. 15 years. The

said Design has, therefore, already become public domain after the expiry

of period of 15 years i.e. after 30.10.2010, therefore, no relief can be

granted to the plaintiffs pertaining to the said Design.

10. As far as Design No.182348 as of 15.05.2010 is concerned,

the said registration is still effective and valid till 15.05.2015. It is to be

seen as to whether the defendant is guilty of infringement of said Design

or not. In order to prove their case, the plaintiffs have filed various

documents including the photostat copy of the Design registration bearing

No.182348 as well as the copy of the catalogue of the plaintiffs showing

the Design registration. In order to compare the Design of the defendant,

the Plaintiffs have filed the original catalogue of the defendant as well as

print out of the designer website showing infringing design. From the

Design registration filed by the plaintiffs as well as the catalogue of the

plaintiffs, it is not clear as to what are the difference and distinctiveness

of the shape and configuration of the Design in question.

11. No coloured photographs or the original catalogue have been

produced by the plaintiffs. At the time of hearing also, neither the sample

of the products was shown nor were the original documents filed. As far

as the defendant's product is concerned, the plaintiffs, as already

mentioned, have filed the original catalogue of the defendant as well as

print outs. This Court has compared the relevant page 224 of the original

catalogue of the defendant i.e. Electrical Lines Price List Directory,

October, 2007 as well as the print-out of the defendant's website and

particularly Item No.150 SL/2/1 where the advertisement of the product

of the defendant is shown i.e. 1 Ballast/Ignitor 70W. The bare perusal of

the said product, as shown by the defendant, with the product of the

plaintiffs with regard to the shape and configuration thereof, does not

appear to be clear and, therefore, it is not possible for this Court to pass

an interim order unless the two products are placed side by side and their

clear photographs are shown. From the article of the plaintiffs, as shown

in Design registration No.182348 as well as the copy of the catalogue of

the plaintiffs, it appears that there is no infringement of the Design of the

plaintiffs.

12. The other aspect of the matter is that issues in this matter were

framed on 28.04.2010. The plaintiffs were granted time to file the list of

witnesses and the affidavits of evidence within two weeks. The matter

was referred to the Joint Registrar, however, it was noticed that the

plaintiffs' evidence was not filed. Joint Registrar granted four weeks'

time in this regard. The matter was adjourned from time to time.

However, the plaintiffs did not file the affidavits in evidence despite the

fact that sufficient time was granted to the plaintiffs to do the same. Final

opportunity in this regard was granted on 15.11.2010 subject to the cost

of Rs.2,000/-. However, it appears from the record that when the matter

was listed, neither any affidavit in evidence was filed nor any witness was

present. It was mentioned in the order dated 03.03.2011 that no

reasonable explanation was given by the plaintiffs for non-production of

the evidence, however, one last and final opportunity was given to the

plaintiffs to file the evidence within one week subject to cost of

Rs.7,000/-. It was noted in the order that if the plaintiffs fail to file the

evidence within one week, no further opportunity would be given.

Thereafter, the matter was adjourned when it was listed before the court

for settlement as per the suggestion of the plaintiffs. The net result is that

the plaintiffs have failed to produce any witness in this case. Since the

present application being IA No.3499/2009 is pending disposal, therefore,

I heard the learned counsel for the parties for some time and reserved the

order on 05.05.2011.

13. In view of the aforesaid reasons, I am not inclined to pass any

interim order at this stage in favour of the plaintiffs. Let the plaintiff may

adduce the evidence as directed by the Court alongwith original

documents and clear copies of products of the parties in question so that

the claim of the plaintiffs can be considered after the trial of the suit.

14. In view of the abovesaid discussions, the application is

disposed of. The finding arrived at by the court on merit about the rival

products shall have no bearing, when the main suit is decided on merit

after the trial.

15. No costs.

MANMOHAN SINGH, J JUNE 03, 2011 jk