PATHERYA J. - (1.) This appeal has been filed by the appellant from order dated 16th January, 2008 whereby the application of the appellant for cancellation of the respondent no.2's design no.180660 dated 26th October, 1999 for "Container Lid" registered under Class 3 was dismissed.
(2.) Counsel for the appellant submits that the respondent no.2 has obtained registration of design contained in a lid. In October 1997 a publication was made in the Andhra Pradesh Times. There can be no registration of a design prior published. The design was also registered earlier. U.S. Patent was granted to the design in May 1998. The registered design is functional and has no independent utility nor can it be sold separately. The registration granted on 26th October, 1999 is the second registration of a design which is not a design under Section 2(d) of the Designs Act, 2000. The first registration was granted on 9th October, 1998. Section 4 of the Designs Act, 2000 (2000 Act) prohibits registration of - "A design which - a) is not new or original; or b) has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or c) is not significantly distinguishable from known designs or combination of known designs; or d) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, shall not be registered." "Design" has been defined in Section 2(d) and must be in an "article" which has been defined in Section 2(a). For it to be entitled to registration it must be new, original, not in use, not published earlier to the filing of application for registration and must be distinguishable from known designs.
(3.) None of these conditions have been satisfied in the instant case as the design was in use prior to the date of application, was neither new nor original had been published in Andhra Pradesh Times, had been disclosed to the public and had no distinct or distinguishing feature, and the application filed by the appellant ought to have been allowed and design 180660 cancelled.;