INOX INDIA LIMITED v. CRYOGAS EQUIPMENT PRIVATE LIMITED

(PER : HONOURABLE THE CHIEF JUSTICE

MRS. JUSTICE SUNITA AGARWAL)

1. These two appeals are directed against the judgement and order dated 03.05.2024 passed by the 4^thAdditional District Judge at Vadodara (Commercial Court) in Trade Mark Suit No.3 of 2019. The order, subject matter of challenge in First Appeal No.2517 of 2024, is of the application under Order VII, Rule 11 of the Code of Civil Procedure (in short as "CPC") filed by the defendant No.2, thereby rejecting the plaint. In the connected Appeal from Order No.119 of 2024, the challenge is to the judgement and order dated 03.05.2024 of the Commercial Court in rejection of the application under Order XXXIX, Rules 1 and 2 Exh.5 for interim injunction. Suffice it to note that the application under Order XXXIX, Rule 1 has been rejected by the Commercial Court as a consequence of the rejection of plaint while allowing application under Order VII, Rule 11 CPC holding that the suit filed by the plaintiff is hit by Section 15(2) of the Copyright Act, 1957 (in short as "

the Copyright Act".

2. We, therefore, proceed to hear the learned counsel for the parties in the main matter, which is First Appeal No.2517 of 2024. With the consent of the learned counsels for the parties, since the issues are legal in nature, we have heard the appeals at the admission stage itself for final disposal and, consequently both the appeals are being decided by this common judgement.

3. The facts in brief are relevant to be noted, at this

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juncture, in order to appreciate the contentions of the rival parties. The Trade Mark Suit No.3 of 2019 was filed before the Commercial Court, Vadodara by the appellant herein, namely the plaintiff seeking a declaration and permanent injunction against the defendants in the following manner:-

"43. The Plaintiff therefore prays that:-

a) this Hon'ble Court be pleased to hold and declare that the Defendants have directly or indirectly, by themselves, their directors, partners, concerns, associates, employees, servants agents, franchisees, dealers, manufacturers, licensees and all persons claiming under them, infringed the Plaintiff's said Proprietary Engineering Drawings, said IP and the said Literary Work;

b) this Hon'ble Court be pleased to restrain the Defendants by themselves, directly or indirectly, by their directors, partners, concerns, associates, employees, servants, agents, franchisees, dealers, manufacturers, licensees and all persons claiming under them, by an order of permanent injunction of this Hon'ble Court, from, in any manner whatsoever, using or causing to be used the impugned drawings or any drawing

similar/substantially similar to the said Proprietary Engineering Drawings or reproducing the impugned drawing in any material form including depicting or making any three dimensional object of two-dimensional said Proprietary Engineering Drawings or manufacturing, marketing or offering for sale, advertising or dealing in any trailers manufactured/ assembled by using the impugned

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drawings or any drawing similar/substantially similar to the said Proprietary Engineering Drawings so as to infringe the Plaintiff's copyright subsisting in the Proprietary Engineering Drawings;

c) this Hon'ble Court be pleased to restrain the Defendants by themselves, directly or indirectly, by their directors, partners, concerns, associates, employees, servants, agents franchisees, dealers, manufacturers, licensees and all persons claiming under them, by an order of permanent injunction of this Hon'ble Court, from, in any manner whatsoever, using or causing to be used the said Literary Work or any work substantially similar to the Plaintiff's said Literary Work or making any copies thereof or reproducing the said Literary Work in any material form and / or from making or causing to be made any colourable imitation of the Plaintiff's said Literary Work so as to infringe the Plaintiff's copyright subsisting in the said Literary Work;

d) this Hon'ble Court be pleased to restrain the Defendants by themselves, directly or indirectly, by their directors, partners, concerns, associates, employees, servants, agents, franchisees, dealers, manufacturers, licensees and all persons claiming under them by an order of permanent injunction of this Hon'ble Court, from, in any manner whatsoever, using or causing to be used the said IP and the know-how used to manufacture/ assemble the impugned products or in any manner whatsoever;

e) This Hon'ble Court may be pleased

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to order and/or direct the Defendants to hand over/ deliver to the Plaintiff custody of all impugned drawings, trailers, labels, advertising materials, packing material and all things bearing the impugned drawings and/ or any other three dimensional objects made

from/assembled from the impugned drawings, for destruction and to remove all or any reference to the impugned drawings or any materials identical or similar to the Plaintiff's said Proprietary Engineering Drawings which are in the Defendant's possession and/ or name, including those in the possession and/or name of the Defendants' associate or sister concerns;

f) This Hon'ble Court may be pleased to award damages to the tune of INR 200,00,000 (Rupees Two Crores Only) for infringement of the Copyright."

4. The said suit was filed on 24.09.2018 along with an application for temporary injunction Exh.5 seeking interim injunction restraining the respondents from infringing the plaintiff's right in their intellectual property and confidential information. The defendant No.2 filed an application Exh.48 seeking rejection of the plaintiff under Order VII, Rule 11 mainly on the ground that the suit is not tenable by virtue of Section 15(2) of the Copyright Act.

5. The contention of the defendants is that the "Proprietary Engineering Drawings" with respect to which claim of the copyright has been laid by the appellant/plaintiff is the drawing which falls within the ambit of a "design"

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under Section 2(d) of the Designs Act, 2000 (in short as

"the Designs Act") and that the copyright in the Proprietary Engineering Drawings was lost because the defendants did not register the drawings under the Designs Act, so as to claim protection under the Designs Act. The copyright, in any case, does not subsist in any design which is registered under the Designs Act, or which is capable of being registered under the Designs Act but has not been registered as soon as any article to which the unregistered design has been applied, has been reproduced more than 50 times by an industrial process by the owner of the copyright or by any other person with his licence.

6. The contention of the defendants, thus, was that the

"Proprietary Engineering Drawings" with respect to which the copyright has been claimed by the plaintiff is a

"design capable of being registered" under the Designs Act and without getting it registered, the said design has been applied to manufacture and sell Cryogenic Semitrailers, which are reproduced more than 50 times by the industrial process and, hence, the plaintiff who claims to be the owner of the said design cannot seek protection under the Copyrights Act by virtue of Section 15(2) of the Copyright Act. The suit, therefore, falls at the threshold, on this ground alone.

7. Before proceeding further, we may note, at this juncture, that this is the second round of litigation pertaining to the rejection of plaint under Order VII, Rule 11, on the ground of the suit being untenable by virtue of Section

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15(2) of the Copyright Act. In the first round, the plaint was rejected vide common order dated 01.04.2022 allowing application Exh.48 and rejecting the interim injunction application Exh.5 as a consequence of the plaint being rejected. Two appeals filed against the said orders, namely First Appeal No. 1478 of 2022 and Appeal from Order No.155 of 2023 were decided vide judgement and order dated 13.03.2024 passed by this Court setting aside the judgement and order dated 01.04.2022 passed by the Commercial Court. It was noted that the judgment of the Commercial Court suffers from inherent flaws in deciding the application filed under Order VII, Rule 11 CPC, and that the Commercial Court has erred in allowing the application Exh.48 under Order VII, Rule 11 of CPC rejecting the plaint under Clause (d) of the Order VII, Rule 11 CPC, holding that the suit is barred under Section 15(2) of the Copyright Act and further that the two applications under Order VII, Rule 11 CPC and Order XXXIX, Rules 1 and 2 had been decided by a common order. It was directed that the Commercial Court shall deal with both the applications simultaneously, but by separate orders, may be of the same date.

8. Insofar as the scope of Order VII, Rule 11 CPC is concerned, a perusal of Section 15(2) of the Copyright Act shows that it does not provide any express statutory bar on the institution of the suit for infringement of the copyright, rather the effect of the provisions is that in a case where Section 15(2) is attracted, the claim for

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protection of Copyright under Section 14 would fall as the plaintiff, in such a case, cannot claim exclusive right under the Copyright Act.

9. The result is that it can be said that since the plaint does not disclose the cause of action or the cause of action is not found out from the reading of the plaint itself, the suit cannot proceed from the averments in the plaint itself. Meaning thereby that, since the plaintiff could not show or establish that it can claim protection of Section 14 of the Copyright Act from the plaint averments itself, in view of Section 15(2) of the Copyright Act the suit cannot proceed, and hence, it is liable to fail at its threshold.

10. Noticing the law of rejection of plaint under order VII, Rule 11 CPC, taking note of the decisions of the Apex Court in Kamala and others vs. K. T. Eshwara SA and others, (2008)12 SCC 661 and in Popat Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, we may state that the question whether the plaintiff discloses the cause of action or not, is a question essentially of fact and must be found from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be true. The test is as to whether if the averments made in the plaint are taken correct in their entirety, a decree could be passed. The test for application of clause (a) of Order VII, Rule 11 is that if allegations made in the plaint even if given face value and taken to be correct in their entirety, no relief can be

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granted to the plaintiff.

11. However, the test for considering the application of Order VII, Rule 11 (d) would be that if the averments made in the plaint on their face value are taken as true, the suit is barred under any law. It was noted by this Court in the previous round with the aid of the decision of the Apex Court in Kamala and others (supra) that two clauses (a) and (d) of Order VII, Rule 11 cannot be mixed up. It is one thing to say that the averments made in the plaint on their face value disclose no cause of action or cause of action cannot be found out from reading the plaint itself, but it is another thing to say that although the suit discloses cause of action, it is barred by law.

12. From this perspective, the effect of Section 15(2), in our considered opinion, is that the copyright in any design which is capable of being registered under the Designs Act once applied to an article, which has been reproduced more than 50 times by an industrial process by the owner of the copyright or by any person with his license, would not subsist under the Copyright Act. The result is that in a suit where copyright is claimed for such a design, it must fail outrightly as no cause of action for seeking relief under Section 14 of the Copyright Act, to have exclusive right to the said design, would be available.

13. Section 15(2), by implication, implies that the suit

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claiming copyright in respect of the design covered by Section 15 under the Copyright Act, must fail at the threshold. However, there may arise a question, in a given case, as to whether the design with respect to which copyright has been claimed would fall within the meaning of "design" under Section 2(d) of the Designs Act, inasmuch as, Section 15 of the Copyright Act would be attracted only in a case where the drawing with respect to which copyright has been claimed in the suit, is covered by the definition of "design" under Section 2(d) and, thus, covered by the Designs Act' 2000.

14. On a conjoint reading of Section 15 of the Copyright Act and Section 2(d) of the Designs Act, the plaintiff would be denied of the protection of the Copyright Act in two situations; (i) drawing with respect to which the copyright has been claimed is a "design" registered under the Designs Act' 2000; and (ii) the drawing with respect to which the copyright has been claimed is capable of being registered under the Designs Act, but has not been registered. In the second situation, owner will loose the copyright as soon as the unregistered design has been applied to any article which has been reproduced more than 50 times by an industrial process.

15. In any case, from a comprehensive reading of Section 15(2) of the Copyrights Act and the Designs Act, it may be said that the "design" which is covered by Section 2(d) of the Designs Act, no copyright can be claimed with respect to it under the Copyright Act, in both the

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eventualities, noted above.

16. We may further note from the definition of "artistic work" under Section 2(c) of the Copyright Act that the drawing (including a diagram, map, chart or plan) whether or not possess artistic quality is covered within the meaning of "artistic work" under Section 2(C) of the Copyright Act.

17. Section 14(c) contemplates protection under the Copyright Act for doing or authorizing any of the acts in respect of a work or any substantial part thereof, in a case of an "artistic work", as provided in Clause (c) of Section 14, which includes reproduction of the work in any material form including depiction of three dimension of a two dimensional work. A further question is as to whether the drawing which is termed as a "design capable of being registered" under the Designs Act, is actually an "artistic work" covered under Section 2(c) of the Copyright Act or a "design" defined under Section 2(d) of the Designs Act, as has arisen in the present case.

18. From a careful reading of Section 15 of the Copyright Act, we may further note that Sections 15(1) and 15(2) operate in two different ways. Section 15(1) would operate where a copyright is claimed with respect to a

"design" registered under the Designs Act, the suit claiming protection of copyright is impliedly barred by law, as the implication with respect to a "design"

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registered under the Designs Act is that no copyright can be claimed under the Copyright Act. Section 15(2), however, would be attracted in a case where any design with respect to which Copyright is claimed, is capable of being registered under the Designs Act, but has not been so registered, and the said design is applied to an article produced for 50 times by an industrial process.

19. This language employed in Section 15(2) itself indicates that some amount of inquiry is required in a given case to hold that the drawing with respect to which copyright has been claimed is actually a "design, capable of being registered" under the Designs Act'2000. This would further imply an inquiry as to whether the said drawing would fall within the meaning of Section 2(d) of the Designs Act so as to be covered by the provisions of the Designs Act' 2000 and also Section 15(2) of the Copyright Act.

20. This inquiry itself would mean that the suit on its own cannot be said to be barred by law from the reading of the plaint itself so as to attract clause (d) of Order VII, Rule 11 CPC, prohibiting the institution of the suit itself for infringement of Copyright. In other words, barring the suit itself by operation of law, either expressly or by implication, without any inquiry from the plaint averments would not be possible.

21. There may be a case where a deeper inquiry may be required to answer the issue as to whether the design

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with respect to which the copyright has been claimed in the infringement suit is an "artistic work" within the meaning of Section 2(c) of the Copyright Act or a

"design" under Section 2(d) of the Designs Act "capable of being registered" under the Designs Act' 2000.

22. Under Section 15(2) the plea of rejection of plaint under Clause (a) of Order VII, Rule 11 CPC, however, can be raised on the ground that the plaint does not disclose a cause of action or no cause of action can be found from the reading of the plaint itself and that the plaint in their entirety must be rejected as no relief can be granted under the Copyright Act, with respect to a "design", which is capable of being registered under the Designs Act.

23. In a case where upon inquiry from the plaint itself, it is found that the drawing is a "design" within the meaning of Section 2(d) of the Designs Act, and, as such, is capable of being registered under the Designs Act, and the said design has been applied to an article which has been reproduced more than 50 times by an industrial process by the owner of the copyright or any other person with his license, it may be said that the suit is barred under the Copyright Act by necessary implication as no copyright can be claimed with respect to such design, in view of the statutory exclusion under sub- section (2) of Section 15 of the Copyright Act, which makes such suit barred by law by necessary implication.

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24. With the above discussion on the scope and ambit of two clauses (a) and (d) of Order VII, Rule 11 CPC, vis-a-vis Section 15(2) of the Copyright Act, we may further proceed to examine the correctness of the order passed by the Commercial Court, in rejection of the plaint under Order VII, Rule 11 CPC holding that by operation of Section 15(2) of the Copyright Act, the plaint is not sustainable as the plaintiff has not obtained registration of design/drawings of its products under the Designs Act despite it capable of being registered and that the plaintiff has reproduced the said products for more than 50 times by application of industrial process. It was held by the trial Court that the industrial drawings which are prepared for the purposes of production of an article being "design" registrable under the Designs Act, non- registration thereof would lead to consequences under Section 15(2) of the Copyright Act.

25. Assailing this order, it is submitted by the learned Mr. Mihir Joshi, Senior Counsel for the appellant that the relief sought by the appellant, namely the original plaintiff was with respect to infringement of the Proprietary Engineering Drawings, intellectual property (IP) and the literary work. The plaintiff has made a categorical statement in the plaint about how the Proprietary Engineering Drawings was created by the plaintiff on its own for the purpose of its LNG, Semi- trailers around the year 2012.

26. It is submitted by the plaintiff in the plaint that the said

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Proprietary Engineering Drawings are original artistic work created by investing enormous skill and labour and the plaintiff has the copyright of the said Proprietary Engineering Drawings. For the purpose of creation of drawings, the plaintiff had invested huge money in acquisition of a US based company, "Cryogenic Vessel Alternatives, Inc" referred to as "CVA" in the plaint, the then known leader in North American region for manufacturing of Cryogenic trailers. The objective of acquiring CVA was to acquire the technology, the know- how, the drawings, the designs and the entire intellectual property in relation to the manufacturing of Cryogenic storage tanks and distribution systems which may also be mounted on trailers and semi-trailers which were developed and owned by CVA (collectively referred to as "CVA IP"). Thus, post the acquisition of CVA IP, the plaintiff became the sole and absolute owner of all the CVA IP. After acquisition of CVA IP and by using CVA support system, the plaintiff was able to manufacture highly efficient cryogenic storage tanks and distribution system used for industrial gases and LNG commonly known as "Cryogenic semi-trailers" and "LNG Cryogenic semi-trailers"; respectively.

27. It was argued that if some hypothetical examples of functional design or drawing are placed on a spectrum, the design for a cork or gear would be purely functional and have to be placed on one end of the spectrum. Whereas, design for a chair may have both aesthetic

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appeal and functional design for its four legs. The dominant part of it thus have to be seen and such a design would have to be placed in the middle of the spectrum. The third type of example can be of the design for production of a child toy, which needs to be attractive. The design when applied to the article, must be such that the finished product can be judged by the eyes. This design would fall at the other end of the spectrum.

28. The contention of the learned Senior Counsel for the appellant, thus, is that these three designs placed at different points on the spectrum have to be judged independently and cannot be overlapped with each other. In each such cases, it is to be decided as to whether the design is functional or the dominant part of it is purely functional or it is a design registrable under the Designs Act, inasmuch as, when it is applied to an article by an industrial process or means, it in finished article appealed to or are adjudged in the finished article as an eye appeal, judged solely by the eye and not a mere functional design for construction of a mere mechanical device.

29. It was contended that with continuous efforts, improvements/developing the CVA IP, post acquisition, the plaintiff developed and manufactured Cryogenic storage tanks and distribution system for 46000 litre capacity and it is sheer hard work, research and development skills achieved by the plaintiff to carry such highly inflammable LNG on Indian roads, which is a

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unique and one of its kind technology out of the artistic drawings developed by the plaintiff by investing huge skill and labour.

30. The Proprietary Engineering Drawings, the CVA IP, the improvements thereto made by the plaintiff and the know-how developed by the plaintiff in relation to manufacture and production of the Cryogenic semi- trailers and LNG semi-trailer are collectively referred as

" the said IP" in the plaint. It is submitted that by using

"the said IP", the plaintiff is manufacturing high quality static and non-static "Cryogenic Semi-Trailers and LNG Semi-Trailers" which are well known and famous for meeting global quality and testing standards. With the strong backbone of employee resources in engineering, project management, manufacturing and other key functions, the plaintiff has also developed manufacturing SOP (standard operating procedure), quality procedures, shop floor documents and tremendous know-how, all of which together helps the plaintiff deliver excellent quality products with total customer satisfaction in stipulated time. The plaintiff has acquired standard global approvals and certification for manufacturing high quality products.

31. It is further contended that by virtue of Section 17(c) of the Copyright Act, since the said Proprietary Engineering Drawings were made by the employees and the plaintiff in the course of their employment under the contract of service, the plaintiff is the exclusive owner of

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the copyright subsisting in the said Proprietary Engineering Drawings and that the said drawings are original artistic works within the meaning of the Copyright Act. It is contended that the said Proprietary Engineering Drawings contain various details, process, descriptions and narrations which are written by its employees involved in creating the said Proprietary Engineering Drawings, which falls within the meaning of

"literary work" under the Copyright Act and resultantly, the plaintiff owns the copyright in the said "literary work" as well.

32. The defendants, who were engaged by the plaintiff at various positions such as General Manager Engineering, General Manager Production in Grade-II had submitted resignation and, as such, relieved from the employment of the plaintiff in January/March/April, 2017. In January, 2017, the defendants, who were never in the business of manufacturing of cryogenic semi-trailers or LNG semi- trailers or any like products, suddenly came up with engineering drawings and the design engineering of the LNG semi-trailers. Mr. Nayan Pandya, Promoter, Managing Director of defendants No.1 and 2, a senior level employee, was also an employee of the plaintiff and he has been instrumental in poaching various senior level employees of the plaintiff with the sole intention of starting a new line of business viz. proposed LNG semi-trailers with the aid of defendants No.1 and 2.

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33. The contention is that the defendants have committed breach of the Copyright of the plaintiff in the said Proprietary Engineering Drawings used in relation to the manufacture of the said products viz. Cryogenic semi- trailers and LNG semi-trailers and related product know- how. It is categorically stated that the defendants have received all material information regarding plaintiff's technical know-how, its manufacturing SOP, its quality procedures, its Proprietary Engineering Drawings etc. and in order to obtain the know-how in relation to the said IP, the defendants have schematically taken the plaintiff's various senior level employees with ulterior motive and mala fide intention of usurping upon the plaintiff's technology, technical know-how, the plaintiff's IP rights subsisting in the said Proprietary Engineering Drawings and the said IP.

34. With these averments in the plaint, it was argued by the learned Senior Counsel for the appellant that the copyright of Proprietary Engineering Drawings ,which is an "artistic work" within the meaning of Section 2(c) of the Copyright Act and the "literary work" related to the said design, covered within the meaning of Section 2(o), cannot be denied to the plaintiff/ appellant herein on the premise of Section 15(2) of the Copyright Act, which is in the nature of exclusion of the right under Section 14 of the Copyright Act.

35. The submission is that the copyright claimed by the appellant falls within the meaning of Section 14(c)(i)(B)

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of the Copyright Act. Terming it a design within the meaning of Section 2(d) of the Designs Act is an error committed by the trial Court. To fall within the scope of Section 15(2), which is an exclusionary clause under the Copyright Act, the drawing which is otherwise an

"artistic work" within the meaning of Section 2(c) of the Copyright Act, must be such which falls within the meaning of "design" defined under Section 2(d) of the Designs Act, which means that it must be established that the features of shape, configuration, pattern etc. of the "artistic work" when applied to a finished article by an industrial process, appeal to and are adjudged solely by the eye.

36. The submission is that the phrase " which in the finished article appeal to and are adjudged solely by the eye" are words of great importance to distinguish a "design"

defined in Section 2(d) of the Designs Act with the

"artistic work" defined under Section 2(c) of the Copyright Act. The eye appeal governs the decision of the customer and would be a relevant factor to decide as to whether the "artistic drawing" is a "design" within the meaning of the Designs Act, and as such is capable of being registered under the Designs Act, so as to be covered within the scope of Section 15(2) of the Copyright Act.

37. It was urged that the issue as to whether the

"Proprietary Engineering Drawings" would fall within the meaning of "design" under the Designs Act, so as to

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invoke the exclusionary clause under Section 15 of the Copyright Act was outside the scope of examination at the stage of Order VII, Rule 11 CPC, at the threshold; as any such inquiry would require leading of evidence and examination thereof. Whether the proprietary design is capable of being registered as a "design" under the Designs Act is an issue which can only be looked into at the stage of trial. The appellant cannot be thrown out at the threshold. The present is not a case where the cause of action has not been disclosed in the plaint. The further question whether right under Section 14 subsists or not was outside the scope of examination at the stage of Order VII, Rule 11 CPC.

38. It was vehemently submitted that on the aspect of

"Proprietary Engineering Drawings" being design, the finding is absolutely perverse. The trial Court has taken out certain averments in the paint and ignored others in the guise of reading of the whole plaint. Apart from the relief sought for infringement of Copyright in the Proprietary Engineering Drawings, other reliefs in IP relatable to the proprietary design and the know-how, the Copyright in the "literary work" related to it, could not have been denied on the premise of the exclusionary clause under Section 15(2),inasmuch as, the relief prayed for restraining the defendant by an order of permanent injunction in any manner from using or causing to be used the said IP and the know-how used to manufacture/ assemble the product, is an independent

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relief to the infringement of copyright of the Proprietary Engineering Drawings. In any case, the defect, if any, in the cause of action alleged by the defendant would not amount to non-disclosure of the cause of action resulting in for rejection of the plaint.

39. The submission is that while examining the application under Order VII, Rule 11 CPC, the Court is required to examine the pith and substance of the plaint. From the reading of Paragraph No.'35" of the plaint, it was submitted that the cause of action has been categorically disclosed therein by stating that both the plaintiff and the defendants are doing their business in Vadodara and under the provisions of Section 62(2) of the Copyright Act the trial Court has jurisdiction to try and entertain the suit for infringement of copyright.

40. It was urged that understanding the basic scheme of the Copyright Act, it may be noted that "copyright" is not defined under the definition clause (2) of the Copyright Act. Section 14 explains the meaning of "copyright" to the effect that it is an exclusive right to do or authorise to do any work or substantive part thereof, subject to the provisions of the Copyright Act.

41. Section 2(c) defines "artistic work" in the manner that it includes drawing (including a diagram, map, chart or plan) whether or not such a work possess artistic quality.

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42. Section 2(y) defines "work", which includes a literary or artistic work.

43. A conjoint reading of Section 2(c) and 2(y) and Section 14 would give a clear picture that "copyright" means exclusive right within the meaning of Section 14, which can be claimed in respect of a work or any substantial part thereof, in the case of an artistic work depicted in three dimensions of a two dimensional work, either of literary or artistic work.

44. The plaintiff has clearly disclosed in the prayer clause of the plaint that it was claiming copyright with respect to the "Proprietary Engineering Drawings" and literary work attached thereto for the internal part of the Cryogenic trailers as also intellectual property rights in CVA IP and the know-how used to manufacture/assemble the products in any manner, whatsoever by the defendants.

45. In view of this categorical statement in the plaint, if the entire plaint is read holistically, it cannot be said that the plaintiff has failed to disclose the cause of action for filing of the suit. The order of rejection of plaint is liable to be set aside on this ground only.

46. Mr. Mihir Thakore, learned Senior Counsel appearing for the defendant/respondent herein would, however, submit that the "artistic work" with respect to which copy is claimed by the plaintiff are four drawings

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appended at Page Nos."264 to 267" of the paper book, which are termed as "Proprietary Engineering Drawings". Section 2(d) read with Section 5 of the Designs Act makes it clear that for any new or original designs, any person claiming to be proprietor thereof has to register the design under the Designs Act, and for registration, an application as per Rule 11 of the Designs Rules, 2001 would be required to be filed, which shall have to be accompanied by four copies of the registration of the design. The applicant shall have to state the class in which the design is to be registered and the article or articles to which the design is to be applied.

47. Rule 14 of the Designs Rules, 2001 further provides that the copy of the design required by Rule 11 shall be exactly similar drawings, photographs, tracings and other representations of the design or shape specimen of the design which is to be applied, which shall show in all the various arrangements in which it is proposed to apply the design to the articles included in the set.

48. The contention is that from the conjoint reading of the provisions of the Designs Act and the Rules noted hereinabove, it is evident that the representation of the design is to be submitted for registration of the design, which is nothing but the drawing on the paper. The Proprietary Engineering Drawings which are part of the record at Page Nos."264 to 267" of the paper book are nothing but drawings which would fall within the

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meaning of drawing under Section 2(d) of the Designs Act when they are applied to an article for reproduction by an industrial process. The Proprietary Engineering Drawings which are nothing but purely industrial drawings, are actually the designs which were to be submitted in four copies as the representation of the design for the purposes of registration under the Designs Act. From this angle also, the "Proprietary Engineering Designs" which have been prepared for the purpose of production of an article named "inner vessel"

of the Cryogenic Semi-trailers" would be covered by the

"design" defined under the Designs Act and shall be capable of being registered under the Designs Act, the exclusion of Section 15(2) of the Copyright Act would, thus, apply to these industrial drawings.

49. It was further argued that this issue can be looked from another angle. Section 52(1)(w) of the Copyright Act has been placed before us to submit that in view of the language employed therein, an act of making a three dimensional object from a two dimensional artistic work such as a technical drawing for the purposes of industrial application of any purely functional part of a useful devise, would not constitute an infringement of Copyright. The industrial drawings are nothing but technical drawings which are prepared for the purpose of industrial application of a purely functional part of the Cryogenic trailer, which is the inner vessel. The Proprietary Engineering Drawings, from this angle, can

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only be termed to be technical drawings, prepared for the sole purpose of industrial application for making of the inner vessel of Cryogenic Semi-trailers and would, thus, be outside the scope of the protection of Copyright. The exclusion both under Section 15(2) and Section 52 of the Copyright Act would be attracted to the "Proprietary Engineering Drawings" which is nothing but "industrial drawings" or "functional designs"

prepared for the production of the article known as

"Cryogenic semi-trailers". Such drawings or tracings itself are registrable under the Designs Act and, therefore, no protection under the Copyright Act would be available.

50. It was, thus, argued that the trial Court has rightly reached at the conclusion that the Proprietary Engineering Drawings of the inner vessel used for production of Cryogenic semi-trailers by covering inner vessel with an outer jacket ceases to exist as an "artistic work", once there is an industrial production. It was argued that the protection under Section 14 of the Copyright Act would cease to be available, no sooner than the minute when any article is produced applying the said drawing by an industrial process. The protection would only be available under the Designs Act as a

"design", if it is registered under the said Act. An industrial drawing prepared for the purpose of production of an article being a functional design where the design is wholly dictated by its function, is

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registrable under the Designs Act. Indeed the intention of the creator behind making of the drawing or design would not be the factor to decide whether the Designs Act would apply or not.

51. The Designs Act' 2000 does not stipulate the intention of the creator as a determinative factor. However, there is a difference between "artistic work" and "design"

activity which is commercial in nature. The protection accorded to a work which is commercial in nature is lesser and cannot be equated with the protection to a work of a pure original artistic work. The Legislature intended to provide industrial and commercial application of an artistic work for commerce a lesser protection. The tracing, drawing etc. which is capably of being registered once applied to the article by an industrial process for reproduction of the said article more than 50 times, it becomes incapable of seeking protection under the Copyright Act.

52. It was emphasized that it is not necessary that in every case a "design" has to be preceded by an "artistic work"

upon which it is founded. Whether or not a design is preceded by an original artistic work, a design would, in its own right, qualify to be termed as an "artistic work", within the meaning of Section 2(c) of the Copyright Act. This is so because the expression "artistic work" as defined in Section 2(c) of the Copyright Act bears a wide definition, including work such as painting, sculpture, drawings such as diagram, map, chart, plan even in an

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engraving or a photograph, whether or not any such work possess artistic quality. However, the design may or may not enjoy a Copyright protection under the Copyright Act depending on whether it is an original

"artistic work", or not. The expressions "copyright in any design" used in Section 15(2) means a Copyright as understood under the Copyright Act and not under the Designs Act. Under the Designs Act, a Copyright has a different connotation from a Copyright under the Copyright Act, which means an exclusive right to apply a design to any article in any class to which the design is registered.

53. The issue with regard to extent of, and the conditions for the Copyright protection to such an "artistic work", as an "artistic work" under the Copyright Act, which is a design registered or capable of registration under the Designs act, is what has been dealt with by Section 15 of the Copyright Act.

54. Once the distinction between original "artistic work" and the "design" derived from it, and the distinction between the Copyright in an original "artistic work" under the Copyright Act, and a copyright in a "design" under the Designs Act is appreciated, meaning and purport of Section 15 of the Copyright Act becomes clear.

55. As noted herienbefore, Section 15 of the Copyrights Act is in two different parts.

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56. Heavy reliance has been placed upon the decision of the Delhi High Court in Micro Fibres Inc (supra) to vehemently argue that an original "artistic work", which may be used to industrially produce the designed article, would continue to fall within the meaning of the "artistic work" defined under Section 2(c) of the Copyright Act and would be entitled to the full period of Copyright protection as is evident from the definition of "design"

under Section 2(d) of the Designs Act. The intention of producing the artistic work is not relevant. It was held by the Division Bench of the Delhi High Court therein that in the original work of art, the copyright would exist and the author/holder would continue enjoying the longer protection granted under the Copyright Act in respect of the original artistic work per se. Whereas, a design would lose its Copyright protection under the Copyright Act once it is registered under the Designs Act. If it is a design registrable under the Designs Act, but has not been so registered, the design would continue to enjoy Copyright protection under the Copyright Act so long as the threshold limit of its application on an article by an industrial process for more than 50 time is reached, but once that limit is crossed, it would loose its Copyright protection under the Copyright Act. This interpretation would harmonize the Copyright Act and the Designs Act in accordance with the legislative intent.

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57. It was argued that the "Proprietary Engineering Drawings" though would fall within the wide definition of "artistic work" under Section 2(c), but as opposed to the pure work of art such as painting or sculpture etc., the engineering drawings/technical drawings are created solely for the purpose of production of a corresponding product and can be termed as no more than instructions for manufacturing to be applied to the product and once they have been applied to the product, they would fall under Section 2(d) of the Designs Act, registrable under the Designs Act for protection, if any.

58. It was argued that the statutory monopoly granted under the Designs Act to a registered design is in conformity with the anti-competitive laws and an attempt to prevent to throttle and stagnate the industry. The Proprietary Engineering Drawings though is an artistic work but it does not stand on its own, inasmuch as, each design registered under the Designs Act would be available to its origin to drawing, chart drawings, etc. and, thus, has ceased to be governed by the Copyright Act once it is applied in a commercially produced artifact/object by an industrial process, if not registered under the Designs Act. It is essentially an industrial design prepared for the purpose of manufacturing the product by industrial process and cannot be granted protection as an artistic work under the Copyright Act as any such effort would enlarge monopoly in industrial design.

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59. Referring to the judgements of the Delhi High Court in

Ritika Private Limited (supra), OK Play India Limited vs. Mayank Aggarwal and others, 2016 SCC OnLine Del 3880, Holland Company LP and another vs. S.P. Industries, MIPR 2017 (3) 0237, decided on 27.07.2017 in CS(COMM.) 1419/2016, it was argued that Section 15 of the Designs Act is a limitation on the scope of protection available to artistic work under the Copyright Act and the exclusion of artistic work from the definition of Design under Section 2(d) has to be read in view of the limitation imposed on Copyright by virtue of Section 15 of the Copyright Act.

60. The acceptance of the case of the appellant would result in every tracing, drawing etc. being protected under the Copyright Act and also being industrially/commercially exploited by being applied to the articles, which can not be the intention of the Legislature under the Copyright Act. A design necessarily requires something in the nature of a drawing or tracing which will not enjoy protection separately once it is applied to an article for production by an industrial process.

61. It was further argued that the other reliefs sought in the suit were about the breach of trust or confidence and the allegations of infringement of Copyright against the appellant. As per section 2(1)(c)(vii) of the Commercial Courts Act, 2015, a dispute arising out of the intellectual property rights related to registered and unregistered Copyright, Design etc. would fall within the meaning of

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commercial dispute. Once claim of the plaintiff about the Copyright in the Proprietary Engineering Drawings falls, no other claims such as breach of trust or confidence would survive.

62. Section 16 of the Copyright Act saves this position by providing that though a person is not entitled to Copyright, but he can assert his right to restrain a breach of trust or confidence. However, the present suit seeking such relief would not fall within the meaning of a commercial dispute under Section 2(1)(c) of the Commercial Courts Act, 2015. As all reliefs prayed in the writ petition revolve around the plea of infringement of Copyright in the Proprietary Engineering Drawings, which is capable of being registered under the Designs Act,and the suit must fail at the threshold in view of Section 15(2) of the Copyright Act. It may, however, be open for the plaintiff to institute a proper suit before the Civil Court seeking reliefs such as breach of trust or confidence, which would be tortuous in nature.

63. In rejoinder, Mr. Mihir Joshi, learned Senior Counsel for the appellant would argue that the dispute raised in the plaint arises out of an agreement, the appointment letter, wherein an undertaking was given by the defendant in the nature of non-competitive class, the appointment letter along with the undertaking are contracts between the parties which survive beyond the period of employment. The question is of evaluation of obligations under the contract which do not go beyond

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the terms of contract. The cause of action is one and all reliefs are to be asked for in one suit, separate action cannot be instituted in such a matter. It was argued that the contention of the learned Senior Counsel for the defendant that the Proprietary Engineering Drawings is an industrial design and would cease to exist as an artistic work under the Copyright Act if there is an industrial production, is too general and vague.

64. It was further argued that the Proprietary Engineering Drawings contains several small drawings of different components of the trailer. Each and every small drawings of the plaintiff would not qualify as a design and, therefore, the protection under the Copyright would subsists. The Proprietary Engineering Drawings are not capable of registration as "design" under the Designs Act, since the product manufactured using the said Proprietary Engineering Drawings possesses no visual appeal as they are drawings of the inner vessel which cannot be seen at all.

65. The term "eye appeal" pertains to the eyes of the consumer and the aesthetic appeal which draws the consumer to purchase the product. It is not to be confused with general visibility. The drawings of the Cryogenic semi-trailer contains several components, which are part of the inner vessel, which are not visible to the eyes of the consumer. Even otherwise, the Cryogenic semi-trailers do not offer any visual appeal to its customers so as to persuade them to prefer the

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product of the appellant or its competitor. It was argued that the trial Court has committed an error of law in holding that every emphasis of the plaintiff on the fact that the inner vessel manufactured by the use of Proprietary Engineering Drawings is not visible from the outside and, thus, for the reason that it is integral part of the final product and not visible to the eyes is not persuasive, inasmuch, as "an article capable of being adjudged solely by the eye", should not be confused with the articles which are finally visible to the eye due to the fact that the said article forms integral part of another article, i.e. the outer jacket in the present case. It is wrongly held by the trial Court that the inner vehicle once manufactured, it became integral part of the final product, i.e. outer jacket and it would be a final product/article in itself, the feature, shape, configuration etc. of the inner vessel itself, thus, can very well be judged by the eye. The trial Court has wrongly concluded that the product manufactured by using the Proprietary Engineering Drawings answers the description of "design" under the Designs Act. The plaintiff's failure to obtain registration under the Designs Act results in the plaintiff loosing the Copyright and design and, hence, reliefs claimed in the plaint cannot be sustained.

66. While so doing, the trial Court has relied on two judgements of the Delhi High Court and one judgement of this Court in Microfibres Inc. vs. Girdhar & Co.

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and another, 2009 SCC OnLine Del 1647, Ritika Private Limited vs. Biba Apparels Private Limited, 2016 SCC OnLine Del 1979 and IPEG Inc. & others vs. Kay Bee Engineers and another, 2016 SCC OnLine Guj 155, to hold that the scope and ambit of Section 15(2) of the Copyright Act would decisively support the case of the defendants for rejection of plaint and lead the Court to conclude that the suit filed by the plaintiff is unsustainable in the eye of law, in view of the provisions of Section 15(2) of the Copyright Act.

67. The submission, thus, is that the trial Court has been guided by the three decisions relied by the defendants in assuming the artistic work of the plaintiff to be covered by the "design" under Section 2(d) of the Designs Act' 2000 and in holding that since the plaintiff has not obtained registration of the said design/drawing of its product under the Designs Act and has produced the articles applying the said decision for more than 50 times by application of industrial process, the suit for infringement is bound to fail by operation of Section 15(2) of the Copyright Act.

68. We may note, at this juncture, that the trial Court has proceeded to hold that if the arguments of the plaintiff about the distinction in the "artistic work" under Section 2(c) and "design' defined under Section 2(d), the premise of the arguments pertaining to "eye appeal" are accepted, the intention of the Legislature behind enacting the Designs Act would be defeated that intends

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to grant higher protection to pure original artistic work such as painting, sculpture etc. and lesser protection to design activity which is commercial in nature which cannot be conferred with the protection granted to pure work of art.

69. Placing the said finding of the trial Court, it was, thus, argued by the learned Senior Counsel for the appellant that the trial Court jumped to the conclusion that the Proprietary Engineering Drawings constituted a

"design", inasmuch as, features or shape, configuration, pattern, ornament or composition of lines or colours etc. in the Proprietary Engineering Drawings of inner vessel, once applied to manufacture the Cryogenic semi-trailers, the inner vessel became integral part of the final product, which can very well be adjudged by the eye and hence, would fall within the scope of the description of

"design' under the Designs Act. This reasoning given by the trial Court is baseless and hypothetical. In any case, the Proprietary Engineering Drawings are not capable of registration as "designs" under the Designs Act since the products manufactured using the said Proprietary Engineering Drawings possess no visual appeal and are drawings, of inner vessel, which cannot be seen at all.

70. Apart from the above, the suit itself involves other rights in "literary work", confidential information etc. and could not be rejected in part. Even assuming without admitting that the suit for infringement of Copyright is untenable, it would survive qua other rights claimed in

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the suit and the entire suit must proceed to trial, inasmuch as, the plaint cannot be rejected in part.

71. Reliance is placed upon the decision of the Apex Court in

Bharat Glass Tube Limited vs. Gopal Glass Works Limited, (2008) 10 SCC 657, wherein the scope and purpose of the Designs Act was considered. With the aid of the said decision, it was argued that while considering the purpose of the Designs Act, the Apex Court has noted Paragraph No.27.01 of the statement in the text book, namely the "Law of Copyright and Industrial Designs by P. Narayanan (4^thEdition)" which reads as under:-

"27.01. Object of registration of designs. —The protection given by the law relating to designs to those who produce new and original designs, is primarily to advance industries, and keep them at a high level of competitive progress. 'Those who wish to purchase an article for use are often influenced in their choice not only by practical efficiency but the appearance. Common experience shows that not all are influenced in the same way. Some look for artistic merit. Some are attracted by a design which is a stranger or bizarre. Many simply choose the article which catches their eye. Whatever the reason may be one article with a particular design may sell better than one without it: then it is profitable to use the design. And much thought, time and expense may have been incurred in finding a design which will increase sales.' The object of design

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registration is to see that the originator of a profitable design is not deprived of his reward by others applying it to their goods.

The purpose of the Designs Act is to protect novel designs devised to be applied to (or in other words, to govern the shape and configuration of) particular articles to be manufactured and marketed commercially. It is not to protect principles of operation or invention which, if profitable (sic protectable) at all, ought to be made the subject-matter of a patent. Nor is it to prevent the copying of the direct product of original artistic effort in producing a drawing. Indeed the whole purpose of a design is that it shall not stand on its own as an artistic work but shall be copied by embodiment in a commercially produced artefact. Thus the primary concern, is what the finished article is to look like and not with what it does and the monopoly provided for the proprietor is effected by according not, as in the case of ordinary copyright, a right to prevent direct reproduction of the image registered as the design but the right, over a much more limited period, to prevent the manufacture and sale of articles of a design not substantially different from the registered design. The emphasis therefore is upon the visual image conveyed by the manufactured article."

72. The Apex Court has observed that the sole purpose of the Designs Act is the protection of the intellectual property right of the original design and the object is to

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benefit the person for his research and labour put in by him to evolve a new and original design. This is the sole aim of enacting this Act. It has also laid down that if the design is not new or original or published previously, then such design should not be registered.

73. The contention is that to distinguish a "design"

registrable under the Designs Act and an "artistic work"

under the Copyright Act, the emphasis must be upon the visual image conveyed by the manufactured article with the application of design, which must be novel design devised to be applied to, in order to govern the shape and configuration of particular article to be manufactured and marketed commercially.

74. The contention, thus, is that the "artistic work" defined under Section 2(c) of the Copyright Act cannot be interchanged with the "design" defined under Section 2(d) of the Designs Act, merely because the "artistic work" was applied to manufacture an article, as in the present case, the Proprietary Engineering Drawings do not contain the details only to govern the shape and configuration of the inner vessel, but also contains other details, which would enable the inner vessel to hold inflammable gas zeroing in leak during transportation. Moreover, the question as to whether the Proprietary Engineering Drawings is a "design" within the meaning of Section 2(d) of the Designs Act or it is an "artistic work" is a question which requires detailed examination in the trial and cannot be determined at the threshold, at

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the stage of Order VII, Rule 11, CPC to hold that the artistic work of Proprietary Engineering Designs is a

"design" registrable under the Designs Act and, hence, the "Copyright" cannot be claimed. The distinction between an "artistic work" and a "design" within the meaning of two enactments has been blurred, in the present case, in the decision of the trial Court.

75. Further, reliance is placed on the decision of the Apex Court in Liverpool & London S.P & I Association Ltd. vs. M.V. Sea Success I and another, (2004) 9 SCC 512, to submit that in ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the Court is restricted to ascertaining whether on any of the allegations, a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. It was held therein that the question of beneficial owner in the said case was not a pure question of fact and it being a mixed question of law and fact, it was not necessary for the plaintiff to set out the subordinate facts which are means of proving it or the evidence sustaining the allegations. For the purpose of rejecting a plaint, it is not necessary

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to consider whether the averments made in the plaint prove the factum of ownership claimed by the defendant. If a legal question is raised by the defendant in the written statement, it does not mean that the same can be decided by way of an application under Order VII, Rule

11 CPC which may amount to pre-judging the matter.

76. With the aid of the judgement of the Apex Court in

Jageshwari Devi and others vs. Shatrughan Ram,

(2007) 15 SCC 52, it was argued that there is a difference between the non-disclosure of a cause of action and defective cause of action, while the former comes within the scope of Order VII, Rule 11, the latter is to be decided during the trial of the suit.

77. With the aid of the judgement of the Apex Court in

Tractors and Farm Equipment Ltd. and others vs. Standard Combines (Pvt.) Ltd. and others, 2012 SCC OnLine Mad 5470, it was placed before us that the decision of the Delhi High Court in Microfibres Inc.

(supra) had been considered therein to note Paragraph No."35" wherein it is observed that it cannot be disputed that the original painting/artistic works which may be used to industrially produce the designed article would continue to fall within the meaning of "artistic work"

defined under Article 2(c) of the Copyright Act and would be entitled to full period of copyright protection. The Delhi High Court in the same paragraph while noticing the distinction between the copyright protection available to original painting and the design

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derived from and founded upon the original painting for the purpose of industrial production of furnishings observed that the design covered by the limitations placed in Section 15 of the Copyright Act would get protection if registered as "design" under the Designs Act but would enjoy lesser period of protection.

78. It was noted in the facts of that case in Tractors and Farm Equipment Ltd. and others (supra) that the Copyright claimed therein was in respect of the original drawings. As far as industrial drawings in question are concerned, the fact that same are being used by industrial process for manufacture of internal and external part of the product, was not disputed. However, the question would be as to whether the industrial drawings reproduced for manufacturing article are aesthetic or functional in nature. Whether particular parts or particular shapes of the products are functional or aesthetic or to some extent aesthetic having functional are controversy in issue to be decided, based on dominant purpose as to whether the features are functional or otherwise. It is a serious question to be considered whether the original drawing in question has protection under the Copyright Act or registrable under the Designs Act and enjoys only lesser protection by virtue of the limitation prescribed under Section 15(2) of the Copyright Act. This question involves serious dispute of mixed question of facts and law regarding the plea of infringement of the design owned by the plaintiff therein

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and the same cannot be decided without framing specific issues and without adducing evidence during trial.

79. It was, thus, held in Tractors and Farm Equipment Ltd. and others (supra) by the Apex Court there are divergent views expressed in law on the issue and the defendant therein cannot be permitted to say that the plaint averments do not constitute any cause of action or the plaint reliefs do not lie under the statute. The provision of law under Order VII, Rule 11 CPC cannot be invoked for rejection of the plaint in a narrow campus and the defendant was held not entitled to get any relief as sought therein.

80. Placing the judgement of this Court in Rapid Bevtech Pvt. Ltd. vs. KHS Machinery Pvt. Ltd., decided on 25.07.2018 in Appeal from Order No.145 of 2018 with Civil Application No.1 of 2018, it was argued that the relief sought against the defendant with respect to diversion of confidential information, know-how and intellectual property of the plaintiff in view of Section 17 of the Copyright Act, is an independent relief and the plaint, in any case, cannot be rejected partially under Order VII, Rule 11 CPC.

81. This is a case worth trial and the plaintiff has been non- suited on the erroneous assumptions drawn by the trial Court by misapplication of the principle of law and ignoring the distinction between "artistic work" and

"design" by misreading the decisions of the Delhi Court

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in Microfibres Inc. (supra) and Ritika Private Limited (supra) as also the decision of this Court in

IPEG Inc. & others (supra).

82. It was vehemently argued by the learned Senior Counsel for the appellants that there is no doubt that the Proprietary Engineering Drawings is an industrial design but the purpose or intention of preparation of such design is not relevant. Moreover, it contains lot of technology collected from various sources and intention of making such design would not be relevant to decide as to whether an industrial drawing is capable of being registered under the Designs Act. Placing the definition of "design" under Section 2(d) of the Designs Act, it was argued that for a "design" to be capable of being registered under the Designs Act, the "design" must be such that when it applies to the finished article, the design of such article appeal to and judged solely by the eye, i.e. it must have an eye appeal. Though the industrial design, Proprietary Engineering Drawings, in the instant case, is of inner vessel which was developed to address the functional aspect of the inner vessel including other technological and other mechanical aspects and there cannot be a straight answer to the question as to whether the "design" in question is a purely functional or a "design" when applied to to any article in the finished article which appeal to can be adjudged solely by the eyes, inasmuch as, inner vessel is not visible to the eye. The question as to whether the

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"design" in question is a functional design cannot be examined at the stage of Order VII, Rule 11 CPC. All disputed questions of fact and law are to be adjudicated on the evidence led by the parties in the trial and the plaint cannot be rejected at the threshold on the premise that it does not disclose a cause of action. No assumptions can be drawn about the drawings being registrable under the Designs Act, inasmuch as, the drawings are composite features of several technological, mechanical and functional aspect of the design. Internal drawings of inner vessel, therefore, cannot fall within the meaning of "design" under the Designs Act. There is no standard formula on which such a drawing or design can be made for the purpose.

83. Upon testing all these submissions of the learned counsel for the parties and perusing the record, at the outset, we may note the interplay between an "artistic work" within the meaning of Section 2(c) of the Copyright Act and a "design" defined under Section 2(d) of the Designs Act, which read as under:-

a) Section 2(c) of the Copyright Act:-

"(c) "artistic work" means:-

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;

(ii) a work of architecture; and

(iii) any other work of artistic craftsmanship;"

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b) Section 2(d) of the Designs Act:-

"(d) "design" means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any more or principle of construction or anything which is an substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of Section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in Section 479 of the Indian Penal Code (45 of 1960) or any artistic work as defined in clause (c) of Section 2 of the Copyright Act, 1957 (14 of 1957);"

84. A reading of the definition of "artistic work" makes it clear that the definition is quite wide so as to include any drawing or diagram including a map, chart or plan, whether or not such work possess artistic quality. Section 2(d), however, "designs" is defined as features or shape, configuration, pattern, ornament or composition of lines or colours, applied to an article, by any industrial process or means, which in the finished article, appeal to and are adjudged solely by the eye. A conjoint reading of both the provisions would indicate that though a "design"

may be an "artistic work" within the meaning of Section 2(c) of the Copyright Act, but every "artistic

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work" would not fall within the meaning of "design"

under the Designs Act if it does not define the finished article in a way that it appeals to and can be adjudged solely by the eye. It seems to us that the eye appeal of a

"design" is a relevant and important factor to ascertain as to whether an "artistic work", which may be a drawing, possessing no artistic quality, would fall within the meaning of "design" under the Designs Act, making it registrable under the Designs Act.

85. The decision of the Delhi High Court in Micro Fibres Inc.(supra) heavily relied by the learned Senior Counsel for the respondent/defendant was pertaining to a dispute where Copyright was claimed by the manufacturers and sellers of upholstry fabrics of the designs on the fabric, on the ground that the said designs were derived from the original and unique artistic works either conceptualized or drawing by its employees or by assignation of the Copyright in such artistic works to the appellant therein by the original artists. The contention was that the respondents therein who were also manufacturers of upholstry fabrics, had incorporated the design in upholstry fabrics manufactured by them founded upon the appellants artistic work or a substantial reproduction thereof. The defence of the defendants was that the designs in question were capable of being registered under the Designs Act and, consequently, the appellant was not entitled to seek protection under the Copyright Act as the design has not been registered under the Designs Act.

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86. Upon an exhaustive deliberation on the provisions of the Copyright Act and the Designs Act, the Division Bench of the Delhi High Court has noted that the definition of

"artistic work" under Section 2(c) of the Copyright Act has a very wide connotation as it is not circumscribed by any limitation of the work possessing any artistic quality. Even an abstract work comprising of few lines of or curves arbitrarily drawn would qualify as an artistic work, which may be two dimensional or three dimensional artistic work. It may or may not have visual appeal. The rights to which a holder of an original artistic work is entitled, are enumerated in Section 14(c) of the Copyright Act, which include reproduction of the work in any material form including depicting any three dimension work of a two dimensional work or vise versa.

87. It is an exclusive right of a holder of a Copyright in an original artistic work to reproduce the work in any material form. If the reproduction of the artistic work is done by employing an industrial process, which may be manual, mechanical or chemical, separate or compound, on an article, and the same results in a finished article, which appeals to the eye as adjudged solely by the eye, then the features of shape, configuration, pattern, ornament or composition of lines or colours applied to the article by the industrial process constitute "design"

within the meaning of the said expression as defined under the Designs Act.

88. It is, however, noted that there is a clear distinction between an original artistic work and the design derived

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from it for industrial application on an article. This position is clarified by the use of the expression "only"

before the words "features of shape, configuration, pattern, ornament or composition of lines or colours" in the definition of "design" in the Designs Act. Therefore, the original artistic work which may have inspired the creation of the design, is not merely the features of shape, configuration, pattern, ornament, or composition of lines or colours which are created to apply to an article by an industrial process, the original artistic work is something different from the design. The definition of

"design" expressly excludes, inter alia, any artistic work defined in Section 2(c) of the Copyright Act.

89. It was further noted that it is not necessary that in every case the design has to be preceded by an artistic work upon which it is founded, whether or not a design is preceded by an original artistic work, a design would, in its own right qualify to be termed as an artistic work within the meaning of Section 2(c) of the Copyright Act. This is so because the expression 'artistic work" as defined in Section 2(c) of the Copyright Act bears a wide definition including work such as painting, sculpture, drawings, such as diagram, map, chart, plan, even an engraving or a photography, whether or not any such work possess artistic quality. However, a design may or may not enjoy a Copyright protection under the Copyright Act depending on whether it is an original

"artistic work" or not. The expression "copyright in any design" used in Section 15(2) means a "copyright" as

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understood under the Copyright Act and not under the Designs Act. Under the Designs Act, a Copyright has a different connotation from a "copyright" under the Copyright Act, which means an exclusive right to apply the design to any article in any class to which the design is registered.

90. The issue with regard to extent and the conditions for the Copyright protection to such an artistic work, as an

"artistic work" under the Copyright Act, which is a design registered or capable of registration under the Designs Act, is what is dealt with by Section 15 of the Copyright Act.

91. As noted hereinbefore, it was noted there that Section 15 of the Copyrights Act is in two parts. The first part covers such design which is registered under the Designs Act, subject to whatever rights that are available in the Designs Act, registered design holder cannot claim protection or complain of copyright infringement in respect of the registered design under the Copyright Act. Whereas sub-section(2) of Section 15 deals with the situation where the design, though is capable of being registered under the Designs Act, but is not so registered. It is clear that in Section 15 of the Copyright Act, the Legislature is dealing with the aspect of Copyright in a registered/registrable design, as understood in the Copyright Act and not the Designs Act. The law, thus, tolerates only a limited industrial or commercial exploitation of the original artistic work by the application/reproduction of the said work in any

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other form or reproduction of copies thereof in exercise of the right enumerated under Section 14(c)(i) and 14(c)

(iii) of the Copyright Act. Beyond the specified limit, if the design derived from the original artistic work is exploited, as prescribed in Section 15(2) of the Designs Act, the Copyright in the design ceases unless it is registered under the Designs Act.

92. It was, thus, held therein that the intention of the creation of the work does not determine the intellectual property rights contained therein, and not whether such work fall within the classification "designs" under the Designs Act or the Copyright Act. The Designs Act nowhere stipulates the intention of the creator of the work as a determinative criteria. Appropriate occasion to evaluate the registreability of the design would arise when the artistic work is translated into an object having features or shapes, configuration, pattern, ornaments, composition of lines or colours, whether two dimensional or three dimensional, by employing industrial process.

93. Considering the objects and reasons of the Designs Act, it was noted by the Delhi High Court in Microfibres Inc. (supra) that the operation of Section 15(2) of the Copyright Act does not exclude from the ambit of Copyright protection, either the original artistic work upon which the design is based or the design, which by itself is an artistic work. It was held that it cannot be disputed that the original painting/ artistic work which may be used to industrially produce the designed article,

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would continue to fall within the meaning of "artistic work" defined under Section 2(c) of the Copyright Act and would be entitled to the full period of the Copyright protection. This is also evident from the definition of

"design" under Section 2(d) of the Designs Act.

94. Taking example of an original painting applied to enable industrial application of the painting to produce the finished products, it was held in Microfibres Inc.

(supra) that while the original painting would indeed be entitled to the Copyright protection, the Commercial/industrial manifestation of such paintings such as design derived from and founded upon the original painting for the purpose of industrial production of furnishings would only be covered by the limitations placed under Section 15 of the Copyright Act and would get protection if registered as a design under the Designs Act, but would enjoy lesser period of protection in case of a registered design.

95. It was, thus, observed in paragraph No."36" as under:-

"36. This clearly shows that the legislature intended that even if the artistic work such as a painting has been used as the basis for designing an industrially produced object for commerce, such as the furnishing in the present case, nevertheless the original painting would indeed enjoy full copyright protection, while the result of the industrial application of such painting, namely, the design used in the industrial production of the ultimate product shall enjoy lesser period of protection as stipulated under the Designs Act

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provided it is registered as a design under the Designs Act. Thus, we are of the view that an original artistic work initially acquires protection under the Copyright Act as an 'artistic work' or else the protection under the Designs Act qua the product created from the artistic work when industrially applied."

96. It was further summarized in Paragraph No."46" as under:-

"46. We thus summarize our findings as follows:—

a.The definition of 'artistic work' has a very wide connotation as it is not circumscribed by any limitation of the work possessing any artistic quality. Even an abstract work, such as a few lines or curves arbitrarily drawn would qualify as an artistic work. It may be two dimensional or three dimensional. The artistic work may or may not have visual appeal.

b.The rights to which a holder of an original artistic work is entitled are enumerated in Section 14(c) of the Copyright act. c. It is the exclusive right of the holder of a Copyright in an original artistic work to reproduce the work in any material form. For example, a drawing of an imaginary futuristic automobile, which is an original artistic work, may be reproduced in the three-dimensional material form using an element, such as a metal sheet.

d.The design protection in case of registered works under the Designs Act cannot be extended to include the copyright protection

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to the works which were industrially produced.

e.A perusal of the Copyright Act and the Designs Act and indeed the Preamble and the Statement of Objects and Reasons of the Designs Act makes it clear that the legislative intent was to grant a higher protection to pure original artistic works such as paintings, sculptures etc and lesser protection to design activity which is commercial in nature. The legislative intent is, thus, clear that the protection accorded to a work which is commercial in nature is lesser than and not to be equated with the protection granted to a work of pure art.

f. The original paintings/artistic works which may be used to industrially produce the designed article would continue to fall within the meaning of the artistic work defined under Section 2(c) of the Copyright Act, 1957 and would be entitled to the full period of copyright protection as evident from the definition of the design under Section 2(d) of the Designs Act. However, the intention of producing the artistic work is not relevant. g.This is precisely why the legislature not only limited the protection by mandating that the copyright shall cease under the Copyright Act in a registered design but in addition, also deprived copyright protection to designs capable of being registered under the Designs Act, but not so registered, as soon as the concerned design had been applied more than 50 times by industrial process by the owner of the copyright or his licensee.

h.In the original work of art, copyright would exist and the author/holder would continue enjoying the longer protection granted under

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the Copyright Act in respect of the original artistic work per se.

i. If the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation would harmonize the Copyright and the Designs Act in accordance with the legislative intent."

97. Taking note of the law laid down by the Division Bench of the Delhi High Court in Microfibres Inc. (supra), heavily relied by the learned Senior Counsel for the respondent/defendant, suffice it to note that the original

"artistic work" does not lose its originality because a

"design" derived from and founded upon the original work has been applied to an article by an industrial process and such article has been reproduced 50 times or more.

98. A conjoint reading of the meaning of "artistic work"

under Section 2(c) of the Copyright Act and "design"

under Section 2(d) of the Designs Act shows that while the "artistic work" would be entitled to the Copyright protection, but the commercial/industrial manifestation of such work, i.e. the "design" derived from and founded upon the original work for the purpose of industrial

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production would only be covered by the limitation prescribed in Section 15 of the Copyright Act and would get protection if it is registered as a "design" under the Designs Act. However, the original artistic work which initially acquired protection under the Copyright Act as an artistic work would not lose the protection merely because the "design" derived from and founded upon it has been applied industrially to create a product. Fundamental distinction between the "original artistic work" under Section 2(c) of the Copyright Act and a

"design" derived from the "original artistic work", which is used for industrial application on an article lies in the definition of "design" under Section 2(d) of the Designs Act. While the "artistic work" has a wide connotation, the "design" is limited to only the features mentioned in the definition clause applied to any article by any industrial process, which results in the finished article and which appeals to the eye or adjudged solely by the eye. Such features of shape, configuration, pattern, ornaments or composition of lines or colours applied to the article by the industrial process which create an eye appeal to the finished product, constitutes a "design"

within the meaning of the expression as defined under the Designs Act.

99. Having said that we may note that the question as to whether an original artistic work falling in the definition under Section 2(c) will lose protection under the Copyright Act because of the features of shapes,

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configuration etc. detailed in it having been applied to an article by an industrial process, which resulted into a finished article which can be adjudged solely by the eye is a question, which cannot be said to be a pure question of fact. The question as to whether "Proprietary Engineering Drawings" of the inner vessel, which is admittedly an "original artistic work" under Section 2(c) of the Copyright Act enjoys protection under the Copyright Act under the Copyright Act, and the protection enjoyed by it would be limited by virtue of Section 15 of the Designs Act because of its application to an article by an industrial process, is a question, which is an important mixed question of law and fact.

100. We may note the settled position of law that a cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief(s) claimed in the suit. For the aforesaid purpose, the material facts are required to be stated in the plaint but not the evidence. Whether a plaint discloses a cause of action or not is essentially a question of fact but whether it does or does not must be found out from the reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.

101. It is ultimately the law of pleadings, that when a set of facts is relied on it is enough to allege it simply without

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setting out the subordinate facts, which are the means of producing it, or the evidence sustaining the allegation.

102. It may be true that Order VII, Rule 11(a) CPC although authorises the Court to reject a plaint on account of failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit.

103. In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate inquiry into doubtful or complicated questions of law or fact. The jurisdiction of the Court is restricted by the statute to ascertaining whether on the allegations a cause of action is shown. The Court is not to see whether the claim made by the plaintiff is likely to succeed. It has merely to satisfy itself that the allegations made in the plaint, if accepted as true, would entitle the petitioner to the relief he claims.

104. If accepting those allegations as true, no case is made out for granting relief, no cause of action would be shown and the plaint must be rejected. But in ascertaining whether the plaint shows a cause of action, the Court does not enter upon the trial of the issues

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affecting the merits of the claim made by the plaintiff. It cannot take into consideration the defences which the defendant may raise upon the merits nor is the Court competent to make an elaborate enquiry into the doubtful or complicated questions of law or fact. If the allegations in the plaint, prima facie, show a cause of action, the Court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him.

105. So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinguished from the absence of full particulars. The Court cannot dissect the pleadings into several part and consider whether each of them discloses a cause of action. Reference is made to Vijai Pratap Singh and another vs. Dikh Haran Nath Singh and another,

1962 SCC Online SC 56, Mohan Rawale vs. Domodar Tatyaba alias Dadasaheb and others,

(1994)2 SCC 392, D. Ramachandran vs. R.V. Janakiraman and others, (1999)3 SCC 267.

106. Coming to the instant case, the main ground on which the plaint has been rejected is that the plaint does not disclose a cause of action which is a ground specified under order VII, Rule 11(a) CPC, inasmuch as, the

"Proprietary Engineering Drawings" of the inner vessel

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which is an original artistic work qualifies the expression

"design" within the meaning of Section 2(d) of the Designs Act as the plaintiff has commercially exploited the Proprietary Engineering Drawings for manufacturing the product known as "Cryogenic semi-trailers", which fact is not in dispute.

107. The commercial Court while relying upon the decision of the Delhi High Court in Microfibres Inc. (supra) referred to other two decisions of the Delhi High Court in Ritika Private Limited (supra) as also of this Court in IPEG Inc. & others (supra), has held that the Proprietary Engineering Drawings by the use of which the inner vessel has been manufactured which is an integral part of the final product would answer the description of design under the Designs Act and the plaintiff's failure to obtain registration under the Designs Act results in the plaintiff loosing the Copyright in the design and hence the reliefs claimed in the plaint cannot be sustained. Once the production of the article whereupon the Proprietary Engineering Drawings had been applied, crossed 50 times, no Copyright can subsists in the drawing under the Copyright Act because of the language employed in Section 15(2) of the said Act.

108. The Commercial Court while relying upon the decisions of the Microfibres Inc. (supra) and Ritika Private Limited (supra), has further noted that it is undisputed fact in the present case that the finished products have

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been emerged from the drawings and the plaintiff has produced these products more than 50 time based on the Proprietary Engineering Drawings and it is the specific case of the plaintiff in the plaint that it has not obtained registration of the design. It was noted that the issue under consideration in this case is same as that has arisen in the case of Ritika Private Limited (supra) before the Delhi High Court and the Division Bench of this Court in IPEG Inc. & others (supra). It was held that the industrial drawings which are prepared for the purpose of production of devise/article are "design"

registrable under the Designs Act and non-registration thereof would lead to consequences under Section 15(2) of the Copyright Act. If the arguments of the plaintiff are accepted as they stand, the intention of the Legislature behind enacting the Designs Act would be defeated that intends to grant higher protection to pure original artistic works such as paintings, sculptures etc. and lesser protection to designs activity which is commercial in nature and cannot be equated with the protection granted to pure work of art.

109. From these findings of the trial Court, it is evident that the trial Court has proceeded on the assumption that the

"original artistic work" will lose protection under the Copyright Act as soon as it is applied to an article by an industrial process, and while saying so, the trial Court has lost sight of the language employed in Section 2(d) of the Designs Act which defines as to which type of work

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would be covered by the definition of "design" under the said provision.

110. We may reiterate with the aid of the decision of the Delhi High Court in Microfibres Inc.(supra) that the intention of making the drawing or sketch which may be called as an industrial design is not relevant. The original artistic work which may be used to industrially produce the designed article, would continue to fall within the meaning of the "artistic work" defined under Section 2(c) of the Copyright Act and would be entitled to full protection of the Copyright irrespective of its application. In the original work of art, the Copyright would exist and the author/holder would continue enjoying the longer protection granted under the Copyright Act in respect of the original artistic work per se. The question as to whether the original artistic work would fall within the meaning of "design capable of being registered" under the Designs Act cannot be answered at the stage of Order VII, Rule 11 CPC, wherein only a prima facie inquiry as to the disclosure of cause of action in the plaint could have been made, inasmuch as, it is mixed question of law and fact and not a pure question of fact.

111. Insofar as Delhi High Court in Ritika Private Limited

(supra) the plaintiff therein claimed Copyright in various drawings and sketches created by the plaintiff for dresses being sold under the trade name of the plaintiff. The issue which the Court was called upon to decide

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therein was that the once copyrighted works of the plaintiff were applied for making of dresses and production of which dresses crossed 50 in number, whether the plaintiff would lose ownership of the Copyright in the work, inasmuch as, the copyrighted works of the plaintiff were capable of being registered as

"designs" under the Designs Act, but the plaintiff has not secured registration of sketches, drawings, designs etc. under the Designs Act. The Delhi High Court while relying upon the Division Bench judgement in

Microfibres Inc(supra) has noted that the Legislature intended to give lesser period of protection to a Copyright when from a copyrighted work a design is created, and it is applied for commercial purposes. It was observed that all the underlying principles in

Microfibres Inc(supra) leave no manner of doubt that once drawing, a sketch or a design, is used for creation of dresses, and once the dresses cross 50 in numbers, no Copyright can subsists in the drawing and sketch under the Copyright Act.

112. While relying upon the said decision, the trial Court has ignored that there was no quarrel in Ritika Private Limited (supra) that the drawings and sketches created by the plaintiff for making of dresses fall within the meaning of "design" under the Designs Act, being the features of shape, configuration, pattern, ornament or composition of lines or colours applied to such dresses, which in the finished dresses appealed to and adjudged

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solely by the eye of the consumer. There was no dispute as to the drawings and sketches which not only defined shape and pattern, but add ornamental value to the finished dresses would have an eye appeal.

113. Similar is the position in IPEG Inc. & others (supra) where it was noted by the Division Bench of this Court that the claims are only regarding "design" for the

"copyright". The appellants therein themselves had applied for the registration of the shape or configuration of the product under the protection of "design" in USA and also sold the said finished product in the market. The suit purported to be based on the artistic work lying in the drawing of the loader/receiver, for the alleged infringement of the Copyright, therefore, was held having no cause of action and, thus, failed. There was no dispute therein about the

geometrical/engineering/mechanical drawings prepared by the plaintiff, for the purpose of manufacturing the machines, being "design" falling under Section 2(d) of the Designs Act.

114. The principles laid down in the aforesaid two decisions, therefore, are not directly applicable to the facts of the instant case and cannot be said to be squarely applicable, as wrongly concluded by the trial Court.

115. We may further seek guidance from the decisions of the learned Single Judge of the Madras High Court in

Tractors and Farm Equipment Ltd. and others

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(supra), wherein while considering the Copyright claimed in respect of the original drawings, as far as industrial drawings are concerned for manufacture of internal and external parts of the tractor, it was held that whether the drawing applied to particular parts or particular shape of the products is functional or aesthetic or to some extent aesthetic having been functional, are controversy in issue to be decided based on the dominant purpose as to whether the features are functional or otherwise. The Court is to look into the dominant purpose for deciding as to whether the features are functional or utilitarian or not.

116. It was held therein that it would be a serious question that whether the original drawings in question has the protection under the Copyright Act or registrable under the Designs Act and enjoys only lesser protection by virtue of the limitation prescribed under Section 15(2) of the Copyright Act. In view of the nature of the said dispute therein, it was held that the suit involves serious dispute of mixed question of facts and law regarding the plea of infringement of the designs owned by the plaintiff and the same cannot be decided without framing specific issues and without consideration of the evidence adduced during the trial. The case of the plaintiff may be weak or turned out to be meritless after examination in detail during trial but the defendant cannot be permitted to say that the plaint averments do not lie under the statute. The provision of law under

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Order VII, Rule 11 CPC cannot be invoked for rejection of the plaint in such a narrow campus.

117. Considering the above, upon a detailed deliberations on the issue before us, we find that as to whether the Proprietary Engineering Designs, with respect to which plea of protection under the Copyright Act is claimed by the plaintiff, would fall within the meaning of "design"

under Section 2(d) of the Designs Act, and be excluded from the "artistic work" under Section 2(c) of the Copyright Act, making the drawings capable of being registered under the Designs Act, which would have limited protection under Section 15(2) of the Copyright Act, is a mixed question of law and facts which could not have been decided at the stage of Order VII, Rule 11 CPC on a prima facie appraisal of the plaint averments.

118. This question is a serious question of law and facts which can only be decided in a trial on the evidence of the parties. The result is that it is not one of those cases where averments in the plaint are such which do not disclose the cause of action or the averments in the plaint when considered would attract the provisions of Section 15(2) of the Copyright Act so as to hold that the plaintiff is not entitled to seek the relief of infringement of Copyright in the Proprietary Engineering Drawings as claimed by it being the designs capable of being registered under the Designs Act. The answer to this question is not as simple which can be dealt with on the basis of the decisions of the Delhi High Court in Ritika

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Private Limited (supra) and of this Court in IPEG Inc. & others (supra) where the issue of the drawings/sketches therein being "design" falling under Section 2(d) of the Designs Act, were not the issues of the subject matter.

119. In view of the above, we find that the trial Court has committed an error of law in drawing an assumption of the Proprietary Engineering Design being "design"

falling under Section 2(d) of the Designs Act so as to exclude the protection under the Copyright Act by mere application of the drawings on the product by industrial application, which has been produced for more than 50 times.

120. In view of the above, while setting aside the judgement and order dated 03.05.2024 passed by the 4^thAdditional District Judge at Vadodara (Commercial Court) in Trade Mark Suit No.3 of 2019, the application under Order VII, Rule 11 filed by the defendant is hereby rejected. The suit is restored to its original number. The interim injunction application under Order XXXIX Rules 1 and 2 CPC filed by the plaintiff is revived by setting aside the order of its rejection dated 03.05.2024, which is a consequential order passed as a result of dismissal of the suit under Order VII, Rule 11 CPC. The result is that the interim injunction application is to be decided on merits independently without being influenced by any of the observations made hereinabove, inasmuch as, all the above observations are made to test the correctness of

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the order of rejection of the plaint. All rights and contentions of the parties in the proceedings pertaining to the interim injunction application are kept open.

121. As the commercial suit has been originally filed in the year 2018, and after amendment of the plaint, it has been marked as Trade Mark Suit No.3 of 2019, noticing that the interim injunction application has been revived in the second round of litigation, it would be treated as having been pending for more than 05(five) years. We, therefore, provide that the Commercial Court shall make an endeavour to decide the interim injunction application as expeditiously as possible, preferably within a period of eight (08) weeks from the date of receipt of the copy of this order without granting any unnecessary adjournment to either of the parties.

122. With the above, both the connected Appeals stand disposed of. Consequently, connected Civil Applications stand disposed of.

(SUNITA AGARWAL, CJ )

(PRANAV TRIVEDI,J)

SUDHIR

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