- (1.) THIS appeal is directed against an order dated the 24th of May 2011 passed by the Asst. Controller of Patents and Designs inter alia dismissing the petition filed by the appellant, for cancellation of the Design No. 188157 dated 18th of February 2002 in respect of Biscuit Packets in Class 09 -07 registered in the name of the respondent No. 3.
(2.) THE respondent No. 3, Parle Products Ltd is engaged in the business of manufacture, marketing and sale inter alia of confectionery and bakery products throughout the country. The respondent No. 3 applied for and obtained registration of various packets, in which biscuits and confectionery products, manufactured by it, are sold in different parts of the country.
(3.) THE respondent No. 3 is the registered proprietor of the designs being design Nos. 188156 and 188157. The said designs are in respect of Biscuit Packets and are registered in class 09 -07 as per classification of goods, under Rule 10 of the Designs Rules 2001, which stipulates that for the purpose of registration of designs, articles shall be classified as per the Third Schedule of the said Rules. The said designs were registered under the Designs Act on 18 February 2002. Section 5 and 6 of the Designs Act 2000 are set out hereinbelow for convenience: - "5 Application for registration of designs. - - (1) The Controller may, on the application of any person claiming to be the proprietor of any new or original design not previously published in any country and which is not contrary to public order or morality, register the design under this Act: Provided that the Controller shall before such registration refer the application for examination, by an examiner appointed under sub -section (2) of section 3, as to whether such design is capable of being registered under this Act and the rules made thereunder and consider the report of the examiner on such reference. (2) Every application under sub -section (1) shall be in the prescribed form and shall be filed in the patent office in the prescribed manner and shall be accompanied by the prescribed fee. (3) A design may be registered in not more than one class, and, in case of doubt as to the class in which a design ought to be registered, the Controller may decide the question. (4) The Controller may, if he thinks fit, refuse to register any design presented to him for registration; but any person aggrieved by any such refusal may appeal to the High Court. (5) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within the prescribed time shall be deemed to be abandoned. (6) A design when registered shall be registered as of the date of the application for registration." "6. Registration to be in respect of particular article. - - (1) A design may be registered in respect of any or all of the articles comprised in a prescribed class of articles. (2) Any question arising as to the class within which any article falls shall be determined by the Controller whose decision in the matter shall be final. (3) Where a design has been registered in respect of any article comprised in a class of article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall the registration thereof invalidated - - (a) on the ground of the design not being a new or original design, by reason only that it was so previously registered; or (b) on the ground of the design having been previously published in India or in any other country, by reason only that it has been applied to article in respect of which it was previously registered: Provided that such subsequent registration shall not extend the period of copyright in the design beyond that arising from previous registration. (4) Where any person makes an application for the registration of a design in respect of any article and either - - (a) that design has been previously registered by another person in respect of some other article; or (b) the design to which the application relates consists of a design previously registered by another person in respect of the same or some other article with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof, then, if at any time while the application is pending the applicant becomes the registered proprietor of the design previously registered, the foregoing provisions of this section shall apply as if at the time of making the application, the applicant had been the registered proprietor of that design.";