JUDGMENT
N.N. Goswamy, J.
1. The plaintiffs have brought the suit against the defendant for permanent injunction and have inter alia claimed the following reliefs:
(1) that the defendants, its servants, agents, representatives and workmen be restrained from manufacturing, selling, offering for sale scooter beadings having identical body france as the same belonging to the plaintiffs' scooter beadings and/or is an obvious imitation of the same amounting to piracy of Registered Design No. 146273.
(2) that the defendant, its servants, agents, representatives and workmen be restrained from affixing the tin plate (monogram) on the scooter beadings and other accessories of its manufacture which is in infringement of the legal rights of artistic craftsmanship belonging to the plaintiffs; protected under Copyright Registration No. A-20213/78.
(3) that the defendant be ordered to render accounts of the sales affected by it of its scooter beadings under the infringing design and copyright monogram and a decree for the amount so ascertained be passed in favour of the plaintiffs and against the defendant.
The case of the plaintiffs is that they started the manufacture and sale of scooter beading in 1977 and the said scooter beadings are of distinctive shape, configuration and design. It is further alleged that the special features of the plaintiffs' scooter beadings is the shape and configuration of the main body frame which is registered and duly protected under Design No. 146273 dated 1st December, 1977 under Indians Designs Act, 1911. The plaintiffs have also stated that the scooter beadings under the aforesaid registered designs are marketed carrying a tin plate (monogram) with the word SURAJ appearing in the top panel and representation of the device of Sun and of two horses resting on the device of a globe and the expression Sehgal Products appearing in the bottom panel. The design of tin plate (monogram) described herein is duly protected under the Copyright Act, 1957, under Registered No. A--20213/78. It is further alleged that by virtue of the registration under the Designs Act as also under the Copyright Act, the plaintiffs have acquired and retained an exclusive right to the adoption and use of the distinctive shape and configuration and design in relation to the scooter beadings of their manufacture. It is also stated in the plaint that the defendant is a manufacturer and seller of the scooter accessories and is manufacturing and selling the scooter beadings which are infringements of plaintiff's registered design and/or a colourful and obvious imitation thereof. According to the allegations, the defendant's design and monogram is not a matter of chance but it has been adopted with deliberate intention on the part of the defendant to deceive the ultimate purchaser and to earn profits to which the defendant is not entitled.
2. Alongwith the plaint, the plaintiff has also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for interlocutory injunction. The application has been opposed by the defendant. The defendant has filed the written statement and the counter claim for cancellation of Design No. 146273. The defendant has not pleaded the prior user, but has stated that the scooter beadings of the type in question are already available in the market from the year 1972. In support of this, the defendant has filed the cover page of the magazine called Motorcycle Guide published in March, 1974 where in the scooter beadings which is almost of identical design has been shown. The defendant has also filed the photostat copies of certain bills issued by Hindustan Electroc Metallics in respect of the scooter beadings. The defendant has also filed a few scooter beadings manufactured and sold by various manufacturers. The scooter beadings so filed are more or less identical to the scooter beadings of the plaintiffs. Regarding tin plate (monogram), the defendant has alleged that two monograms; one of the plaintiff and other of the defendant are easily distinguishable and has further pointed out certain distinct features. I have heard the learned counsel for the parties and in my opinion, it was necessary for the plaintiffs to show that they were the proprietors of a new or original design not previously published in India. The material produced by the defendant which is mentioned above, prima facie, it cannot be said that the design of the plaintiffs is new or original as the same has been published as far back as 1974 and was being sold in the market since then. The other scooter beadings placed on record by the defendant are also of identical designs though it has yet to be decided as to when were they manufactured and sold. It is well settled that the mere fact that the plaintiff is in possession of registered design is not of itself necessarily prima facie evidence of its validity. On the contrary where it appears that the design has only been recently registered and where it appears that there is a substantial issue to be tried, an interlocutory injunction will not be granted. In my opinion the issues raised by the defendant are triable and as such it is not safe to stop the business of the defendant at this stage. The balance of convenience is clearly in favour of the defendant. Accordingly, I vacate the exparte injunction granted on 27.2.1979 in respect of selling, offering for sale, scooter beadings having identical body frame as the frame of the plaintiffs' scooter beadings registered at No. 146273. However, the defendant is directed to maintain the true and full accounts of the manufacture and sale of such scooter beadings. As for the tin plate (monogram) I have seen the monogram being used by the plaintiffs as also by the defendant and I am of the opinion that the monogram being used by the defendant is likely to deceive the ultimate purchaser. The defendant does not claim to be the prior user of the monogram. The distinctive features pointed by the defendant are not material as the colour scheme, the design and the get up is absolutely identical with that of the plaintiffs. Accordingly, the defendant is restrained from using the said monogram during the pendency of the suit. There will be no order as to costs.