JUDGMENT
Gian Chand Jain, J.
1. Messrs. Globe Super Parts, Faridabad, respondents in this application, manufacture Gas Tandoors. On February 21, 1977, they got registered a design No. 145258 in respect of their Gas Tandoor. Petitioners Messrs Domestic Appliances, New Delhi, also manufacture Gas Tandoors under the trade mark 'Sizzler'. They are selling the same in Delhi market. Respondents filed a suit No. 506 of 1977 against the petitioners alleging, inter alia, infringement of their registered design and obtained a temporary injunction restraining the petitioners from selling their Sizzler Gas Tandoors. Feeling aggrieved the claiming themselves as interested in getting the said design No. 145258, cancelled, the petitioners have filed this application under section 51A of the Designs Act, 1911 for an order directing cancellation of the said design No. 145258 and for intimating the controller of Designs, Calcutta, accordingly. The cancellation is sought on the allegations that design No. 145258 was pre-published in India on the date of registration inasmuch as the respondents themselves were manufacturing and selling these Gas Tandoors earlier to the date of application for registration of design No. 145258 and had sold the same to various parties in Delhi, Punjab, Haryana, Jammu and Kashmir and Uttar Pradesh had also advertised the said Super cook Gas Tandoor in several newspapers, including the Hindustan Times dates January 2, 1977 & January 19, 1977. It was also averred that the respondents were not the originators or the owners of the design and that a number of manufacturers were manufacturing Gas Tandoors with this design openly and extensively and the design was neither new nor original on the date of application. The application was resisted by the respondents. It was pleaded that there was no prior publication, lack of novelty, originality or advertisement of the design in question. The design, it was averred, was new and original design and the present petition had been filed as a counter-blast to the respondents suit No. 506 of 1977. It was also pleaded that the petitioners were not interested in the cancellation of the design.
2. Suit No. 506 of 1977 had earlier been consolidated with this case. On January 15, 1979, it was ordered that the issues framed in the suit will govern the trial of this application. The said suit, however, had since been transferred to the file of the Additional District Judge, Delhi. The issues framed in that suit are as follows:-
Is the suit filed on behalf of the registered partnership and has the plaint been signed, verified and presented by a duly authorised person.
Have the defendants infringed the registered design No. 145258 in respect of Gas Tandoor in the name of the plaintiff and if so, what is its effect.
Is the registration of the said design liable to be cancelled on the ground that the design was previously published in India by the plaintiff or by the others?
Have the defendants got their design registered and if so, what is the effect of that?
Is the design of the plaintiff liable to be cancelled on the ground that it is neither new nor original and no special novelty was claimed in the design application?
Are the defendants estopped from challenging in the validity of the plaintiff's registration on the ground that it itself has got a design registered?
Is the registered design of the plaintiff liable to be cancelled for any other reason set out in the written statement?
Has the plaintiff acquired a right to use the design of the Gas Tandoor to the exclusion of any other manufacturer whereof?
Whether the plaintiff's right, (if established), to the exclusive use of the design has been infringed by the defendants and if so what is its effect?
Are the defendants passing off their goods as being those of the plaintiff?
Has this court not got pecuniary jurisdiction to try this suit?
To what relief is the plaintiff entitled, if any?
3. Issues 3, 5 and 7 only are relevant for the purposes of this application. These are being disposed of together as the same are interlinked with each other. I may add that no plea of estoppel has been raised in these proceedings by the respondents.
4. Issues 3, 5 and 7:
Section 51A(1)(a) of the Designs Act, reads as under:-
51A. Cancellation of registration. (1) Any person interested may present a petition for the cancellation of the registration of a design--
at any time after the registration of the design to the High Court on any of the following grounds, namely: -
(i) that the design has been previously registered in India; or
(ii) that it has been published in India prior to the date of registration; or
(iii) that the design is not a new or original, design or
5. An examination of the above provisions shows that the applicant must be a person interested in the cancellation of the registered design. It was not disputed before me that the petitioners were persons interested in the cancellation within the meaning of section 51A. Even otherwise, it is admitted that the respondents have filed a suit against the petitioners inter-alia alleging infringement of the design in dispute and have obtained a temporary injunction restraining the petitioners from selling their Gas Tandoors with the trade mark 'Sizzler'. These facts would bring the petitioners within the purview of the words 'person interested'. I consequently hold that the petitioners were the persons interested in the cancellation of the registered design in dispute.
6. A design can be cancelled on three grounds mentioned under clauses (i), (ii) and (iii) of section 51A(1)(a) of the Designs Act reproduced above. Admittedly, the case does not come under clause (i). There is no allegation even that the design had been previously registered in India. The learned counsel for the petitioners mainly claimed cancellation on the ground contained in clause (ii) namely, that the design had been published in India prior to the date of registration. The word 'published' or 'publication' has not been defined in the Designs Act. Russel-Clarks in his book ('Copyright in Industrial Designs', Fourth Edition, describe the meaning of 'publication', in these words ;
Broadly speaking, there is publication if the design has been disclosed to the public as opposed of being kept secret. The question which has to be decided is, therefore, has the public been put in possession of the design? Has it knowledge of the design? It is not, of course, necessary that every member of the public should possess the knowledge. It is sufficient, and there will be publication if the knowledge was either--
Available to members of public; or
Actually in fact shows and disclosed to some individual member of the public who was under no obligation to keep it secret.
7. In the present case the petitioners have proved on record advertisements (exhibits P1 and P2) appearing in the Hindustan Times dated January 2, 1977 and January 19, 1977, respectively. In these advertisements, the design of respondents Gas Tandoor Super cook has been duly published. By these advertisements the public, in my view, was put in possession of the design. It fully acquired the knowledge of the design, and it remained no more a secret. The only argument advanced by the learned counsel for the respondents about these advertisements was that for fully publishing a design it was necessary that at least its, two poses were published, these advertisements contained only one pose which did not amount to publication as contemplated under clause (ii) of section 51A(1)(a) of the Designs Act. This contention, in my view, has no merit. A perusal of the Advertisements given a fair and complete idea of the design and amount to due publication of the design.
8. D.W. 1, Darshan Singh Chawla, deposed that working drawing of the article advertised for sale vide Exhibits P1 and P2 was not complete and it was not possible to say as to what was its structure from inside and, therefore, the publication did not give full representation of the article sought to be sold. Similarly, Mr. J.P. Malhotra (D.W. 2) satisfied that the photograph appearing in Exhibits P1 and P2 were not sufficient for acquiring full knowledge of the article mentioned therein. We are not concerned with its inside mechanical devise. The photographs contained in Exhibits P1 and P2 give a complete idea of the design of the articles.
9. Again P.W. 1, Bhagwan Dass, an employee of Messers Dev Crockery Store disposed that they were selling Super cook Gas Tandoors since 1977. They displayed the Super cook Gas Tandoor at their shop. He brought first bill in regard to the purchase of the Super cook Gas Tandoor from the respondents. This purchase was affected on January 1, 1977. On that date twelve Gas Tandoors were purchased vide Bill No. 1412 of the same date. No doubt this witness could not identify the signatures of the persons who had prepared Bill No. 1412, but the fact that twelve Gas Tandoors were sold to this firm was admitted by Mrs. Subhash Kohli, manager of the respondents, who appeared as D.W. 8. In this statement, dated September 24, 1980, he deposed that he had brought the bill book containing copies of the bills issued from January 1, 1977 and vide Bill No. 1412, twelve Super cook Gas Tandoors were sold by the respondents to Messrs Dev Crockery House. He further admitted that according to the bill book respondents had sold approximately 200 Super cook Gas Tandoor Exhibits PA which contained a writing 'registered design No. 145258' and stated that it was Super cook Gas Tandoor which was being sold by the respondents. The evidence of this witness proves beyond doubt that these Tandoors had been sold to various dealers in the market before the registration of the design in question.
10. In his statement recorded after lunch on the same date i.e. September 24, 1980, the witness deposed that the respondents were manufacturing two or three types of Super cook Gas Tandoors. In view of the statement, it was argued that it has not been proved that the Gas Tandoor sold in January, 1977 related to design No. 145258. This argument cannot be accepted. There is no satisfactory evidence that other types of Gas Tandoors were also known as Super cook Gas Tandoors. The defendants were in possession of documents which could conclusively prove whether the Gas Tandoors with design in question had been sold in January, 1977 or not. These documents have not been produced. The other types of Gas Tandoors which respondents were allegedly manufacturing have not been produced. The advertisements Ex. P1 and P2 contain the names of the various firms dealing in the Gas Tandoor advertised. The advertisement was admittedly of the Gas Tandoor whose design was got registered as registration No. 145258. All these circumstances prove that the Gas Tandoors of the impugned design had been sold in the market prior to the date of this registration. In other words the design had been published in India prior to the date of registration.
11. Respondents' learned counsel contended that the patent of this Gas Tandoor was registered in December 1976, i.e. prior to the alleged publication. This fact, however, is not at all relevant. The question of patent is not at all involved in this case.
12. In view of the findings that the design had been published in India prior to the date of its registration, I need not go into other questions. In conclusion, I hold that the design was liable to be cancelled. Issues are decided accordingly. The petition is, therefore, accepted and design No. 145258 is ordered to be cancelled. The Controller of Designs, Calcutta, be informed accordingly. The petitioners are entitled to costs. Counsel fee Rs. 200/-.