TOBU ENTERPRISES PVT. LTD. Vs. MEGHA ENTERPRISES AND ANOTHER
HIGH COURT OF DELHI
Tobu Enterprises Pvt. Ltd.
Megha Enterprises And Another
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G.R. Luthra, J. -
(1.)The present application under Order 39 Rules 1 and 2 read with Sec. 151 C.P.C. is for issue of an injunction restraining the defendants from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in tricycles which are an infringement of the plaintiff's registered design No. 144635 'and 144636 or passing off its goods or business as the goods or business of the plaintiff.
(2.)The aforesaid application was filed alongwith a suit No. 437/83 for issue of a perpetual injunction on the same lines on which the temporary injunction is prayed for and also for rendition of accounts of profits illegally earned by the defendants by sale of the impugned tricycles. It was also prayed in the suit that defendants be directed to deliver to the plaintiff all the impugned goods, blocks etc. for purposes of destruction.
(3.)Plaintiff is a company incorporated under the provisions of the Indian Companies Act having its registered office at 8/29, Kirti Nagar Industrial Area, New Delhi. The plaintiff company is carrying on the manufacture and sale of children's bicycles, tricycles, cars and strollers (heteinafter collectively referred to as the goods). The case of the plaintiff is that the goods of the plaintiff has distinctive shape and configuration and are in great demand. One of the products of the plaintiff is 'mini bike tricycle'. According to the plaintiff, the design of that tricycle and its seat were got registered at Nos. 144635 and 144636 respectively under the Designs Act, 1911 (hereinafter referred to as the Act). The aforesaid registrations were obtained on 16th Aug., 1976. The assertions of the plaintiff are that within a short span of time, the shape, the configuration of the aforesaid tricycle and its seat acquired enviable reputation and that the public started recognising and purchasing the aforesaid bicycle/tricycle as the exclusive manufacture of the plaintiff company. It is complained by the plaintiff that defendant No. 1, which is either a partnership firm having defendant No. 2 as its partner or a trade name solely owned by defendant No. 2, in Feb. 1983 started manufacture and sale of tricycle of an identical or at least substantially similar deign as those of the former without the consent, permission or licence of the former which amounted to infringement of the rights of the former under the Act. It is further complained that the defendants with a view to take advantage of popularity of the plaintiff's design of the tricycle and its seat and also with a view to encash the goodwill and reputation acquired by the said designs started passing off their inferior quality tricycle as the one manufactured by the latter.
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