PRAVEEN MURAKA Vs. BHAMA ENTERPRISES INDIA PVT LTD
HIGH COURT OF MADHYA PRADESH (AT: INDORE)
Bhama Enterprises India Pvt Ltd
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Sujoy Paul,J. -
(1.) The subject matter of challenge in this miscellaneous appeal filed under Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908 (CPC) is the order of learned Commercial Court, Indore dated 05/09/2020, whereby application filed by appellant/plaintiff under Order XXXIX Rule 1 & 2 of CPC is disallowed. The appellant and respondents are manufacturer/proprietors of water bottles branded as "Kool Kommandar" and "Cool Cutie" respectively. They have taken diametrically opposite stand relating to newness and originality of the design of their bottles. Since attempt of appellant to obtain injunction against "Cool Cutie" failed, this appeal is filed assailing the order of Commercial Court and praying that the respondent be restrained from infringing or passing off the appellant's registered design in the interest of justice.
(2.) Certain facts are not in dispute in the instant case and pertinently, Court below in para-6 onwards of the impugned order mentioned those facts. It is apt to mention those relevant admitted facts:-
i) The appellant/plaintiff manufactures bottle branded as "Kool Kommandar" and defendant No.1 manufactures the bottle branded as "Cool Cutie".
ii) Appellant/Plaintiff is a prior user of design of bottle "Kool Kommandar", whereas defendant's bottle "Cool Cutie" came into being later on.
iii) The design of "Kool Kommandar" was registered under the Designs Act, 2000 (Act of 2000) on 30/11/2015, whereas design of "Cool Cutie" was registered on 08/01/2019.
iv) Before institution of instant suit, the appellant sold 3, 81, 571 bottles of "Kool Kommandar".
v) One of the defendants was employee of appellant/plaintiff.
(3.) The learned counsel for the parties appearing before us also fairly submitted that the aforesaid facts are not in dispute.;
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