- (1.) Leave granted.
(2.) This appeal is directed against the order dated 17.8.2005 passed by the Calcutta High Court whereby learned Single Judge has set aside the order passed by the Assistant Controller of Patents & Designs, Kolkata dated 20.9.2004 whereby the Assistant Controller has cancelled the registration of the respondent herein and held that there was no material on record to show that the design had previously been applied to glass sheets. It was also held by learned Single Judge that the order impugned considered with the materials on record, including in particular the computer print-outs clearly revealed that the respondent has only compared the pattern and/or configuration considered the visual appeal thereof, but not the visual appeal of the pattern and/ or configuration on the article. In other words, the Assistant Controller has not considered the visual appeal of the finished product. The visual effect and/or appeal of a pattern embossed into glass sheets by use of embossing rollers could be different from the visual effect of the same pattern etched into glass sheets manually. This aspect was not considered. Aggrieved against this order passed by learned Single Judge, the present appeal has been filed by the appellant.
(3.) In order to appreciate the controversy involved in the present appeal, a few facts may be dilated here. The respondent herein claimed to carry on business inter alia of manufacture and marketing of figured and wired glass sheets since 1981. The respondent claimed to be the originator of new and original industrial designs, applied by mechanical process to glass sheets. According to the respondent, the glass sheets have eye catching shape, configuration, ornamental patters, get up and colour shades and the same were registered and/or were awaiting registration as industrial designs under the Designs Act, 2000 (hereinafter to be referred to as the Act of 2000) and the Rules framed thereunder. For production of glass sheets of the design registered as Design No.190336, two rollers are required. The rollers are manufactured by M/s. Dorn Bausch Gravuren GMBH of Germany (hereinafter to be referred as the German Company). According to the respondent the rollers are not only used for manufacture of glass sheets, but for various other articles including plastic, rexin and leather. The respondent placed an order on the German Company for supply of the rollers for launching a design of figured glass with new and novel features not produced before by anyone else. On or about 29.10.2002 the respondent applied to the Controller of Patents and Designs under Section 51 of the Act of 2000 for registration of the said design in Class 25-01. The said design was duly registered on 5.11.2002 and was to remain valid for a period of 10 years from the date of its registration. The respondent claimed the exclusive copyright in India on the said design applied to glass sheets. It was claimed that no other person has any right to apply the said design to glass sheets as the respondent has exclusive right over the said design on the glass sheets. The respondent marketed the glass sheets of the said design under the name of Diamond Square and that became popular amongst the customers soon after its launch in the market. After registration of the said design the respondent issued a notice on 21.5.2003 cautioning other manufactures from infringing copyright of the respondent in respect of the said registered design. But in the meanwhile the appellant and its associate IAG Co.Ltd started imitating the said registered design, as a result thereof the respondent was constrained to file a suit being Civil Suit No.1 of 2004 against the appellant in the District Court of Mehsana. The respondent obtained a restraint order restraining IAG Co. Ltd. from infringing the copyright of the respondent against the said design. In order to counter-blast the suit, the appellant herein filed an application under Section 19 of the Act of 2000 before the Controller of Patents & Designs for cancellation of registration of Design No.190336 in the name of the respondent mainly on the ground that the design has already been previously published in India and abroad and on the ground that the design was not new or original. The appellant primarily relied on a catalogue of the German Company and letter dated 10.9.2003 of the German company addressed to M/s. IAG Co. Ltd. the holding company of the appellant stating that the said German Company had developed design No.2960-9010 in the year 1992 and the other evidence relied on by the appellant was a document downloaded from the internet from the official website of the Patent Office of the United Kingdom on 22.9.2004 which indicated that the same design had been registered in United Kingdom in the name of M/s.Vegla Vereinigte Glaswerke Gmbh sometime in 1992. As against this the respondent filed an affidavit stating that the German Company has been engaged in the manufacture of engraving rollers and no other goods and it was contended that the company was not engaged in manufacture of the goods other than engraving rollers. It was contended that the company never manufactured engraved glass sheets by using engraved rollers. The respondent also relied on the communication dated 4.3.2004 of the German company confirming that the embossing rollers covered by Design No.2950-910 had been sold to the respondent on condition that all user rights available in India under Indian laws would vest exclusively in the respondent and that the respondent would be entitled to exclusive user rights for at least five years. The German company was aware of the registration of the Design No.190331 and it had no objection to the design being marketed by the respondent herein. An affidavit was also filed by the Liaison Executive of the respondent company that he visited Germany and upon enquiry ascertained that M/s. Vegla Vereinigte Glaswerke Gmbh had never manufactured glass sheets of the design registered as Design No.2022468 in the United Kingdom. The respondent also objected to the admissibility of the materials alleged to have been downloaded from the United Kingdom Patent Office. It was also contended that in absence of corroborative evidence, such evidence cannot be tendered and it cannot be treated as admissible evidence. It was also contended that the German Company only manufactured rollers but did not produce glass-sheets prepared out of these rollers.;