Nadira Patherya, J. - (1.) AID 1 of 2010, AID 2 of 2010 and AID 3 of 2010 are appeals filed by the appellants from the order of the Joint Controller of Patents and Designs, the respondent No. 2 dated 28th March, 2008. The said order was passed on cancellation applications filed by the respondent No. 3 in respect of the appellant's design Nos. 184135, 184136 and 184137, all of which was registered in June 2000. The design is in a mosquito coil which is hexagonal in shape.
(2.) Counsel for the appellant submits that all the three designs of the appellant was registered on 13th June, 2000 that is much before the design of the respondent No. 3 which was registered on 19th October, 2004.
(3.) In January 2005 the appellants filed CS (OS No. 121 of 2005) in the Delhi High Court alleging infringement of registered design nos. 184136 and 184137. In the said suit the respondent No. 3 filed a written statement and made a counter-claim seeking cancellation of the design of the appellants. The appellant thereafter filed cancellation petitions seeking cancellation of the respondent No. 3's design nos. 197811 and 197426 in July 2005, vis-a-vis its registered design nos. 184136 and 184137. The respondent No. 3 in its counter statement pleaded that the designs though virtually identical were new and novel and there had been no prior publication. Evidence affidavits were also filed. In proceedings filed before the Delhi High Court, in August 2005 issues were framed and one of the issues framed, was whether design nos. 184136 and 184137 were liable to be cancelled. In 2005 after the filing of the appellant's cancellation petitions, the respondent No. 3 filed cancellation proceedings against the registered designs of the appellant. The appellant through several letters called upon the respondent No. 2 to give it an opportunity to cross-examine the persons who had affirmed the affidavit-in-opposition. Without disposing of the said request the order dated 28th March, 2008 has been passed. No step was taken by the respondent No. 2 to process the appellant's application and without processing the appellant's cancellation petition, the cancellation petition of the respondent No. 3 reached the stage of filing evidence. The appellant filed its evidence in the cancellation petitions filed by the respondent No. 3. Hearing notice was thereafter issued. In March 2007 an application was filed seeking transfer of the cancellation petition to the Delhi High Court as the same issue was pending before the Delhi High Court. Without disposing of the said interim applications, one for cross-examination and the other for transfer, the respondent No. 2 sought to hear the cancellation application of the respondent No. 3. This though brought to the notice of the respondent No. 3 was not addressed. Without considering the said interim applications, the respondent No. 2 proceeded to hear the cancellation application filed by the respondent No. 3. It was only after much persuasion that the respondent No. 3 proceeded to hear the interim application with regard to transfer and the same was dismissed by order dated 13th February, 2008. Applications were also filed before the Delhi High Court which was heard and disposed of by order dated 5th March, 2008 whereby the application filed by the appellants was dismissed. An appeal filed from the said order was dismissed as withdrawn. An appeal was thereafter filed from the orders dated 13th February, 2008 and 5th March, 2008 passed by the respondent No. 2 before the Delhi High Court. The said appeal was converted to Civil Miscellaneous Petition which was heard and orders reserved. In the meantime respondent No. 2 passed the order dated 28th March, 2008 thereby cancelling the registered design nos. 184135, 184136 and 184137 of the appellants. Being aggrieved by the said order this appeal has been filed.;