SOUMEN SEN,J. - (1.) In spite of repeated attempts, the principal namely Mr. Declan Kelly could not be served. However, his constituted attorney will be served with the notices several times. The constituted attorney of Mr. Declan Kelly is not represented.
(2.) Mr. Ranjan Bachawat, the learned senior Counsel appearing on behalf of the appellant, contends that in view of the order passed by the Delhi High Court in C.S.(O.S.) No. 2025 of 2007, Declan Kelly could not have filed the application for cancellation of the registered design of the appellant. The learned Counsel has urged that by reason of the settlement arrived at between the parties which clearly acknowledged the right of the petitioner to use the design registered in favour of the petitioner the private respondent could not be considered to be a person interested inasmuch as right, if any, has been waived by the said respondent to question the said mark. Although the compromise was brought to the notice of the adjudicating authority, but it appears that no argument specifically has been made with regard to the locus of Mr. Declan Kelly or his constituted attorney to maintain the action. The challenge was more on the authority of the constituted attorney to represent Mr. Declan Kelly and resist the application on the basis of the compromise order. Although a reading of the objection gives an idea that the appellant wanted to contend before the adjudicating authority that by reason of such compromise and acceptance of the registered design of the petitioner the respondent no. 3 could not be a person interested within the meaning of Section 19(1) of the Designs Act, 2000, but it appears that the adjudicating authority did not consider the said objection as of any importance since the adjudicating authority has proceeded on the basis that there is a prior publication by reason of which the petitioner cannot claim novelty and hence the registration of the impugned designs. The adjudicating authority has gone into the details of the features of the impugned design with the prior design and has found that the impugned design is taught by a prior publication. The approach perhaps was adopted in order to maintain purity of the register. The larger question, however, would remain as to whether the respondent no. 3 at all could have filed an application for cancellation having regard to the order passed by the Delhi High Court.
(3.) Mr. Declan Kelly was the plaintiff in the suit before the Delhi High Court. The suit was disposed of by the order dated 15th September, 2008 recording the terms of settlement between the plaintiff and the defendant which reads as follows: "1. The Plaintiff agrees to withdraw this suit against Defendant No.4. 2. The Defendant No.4 has been given to understand that the Plaintiff and Defendant Nos.2, 3 and 5 have settled their disputes whereby: (1) Defendant Nos. 2, 3 and 5 have severally acknowledged the validity of Indian Registered Design Nos. 177653, 177654, 177655, 177656 and 177657, all dated October 7, 1998, (the "Plaintiff's Registered Designs") and that the Plaintiff is the registered proprietor of said designs. (2) The Plaintiff has acknowledged the validity of Registered Design Nos. 205859, 205860, 205861, 205862, 205863 and 205864, all dated September 8, 2006 (the "Defendant No.5's Registered Designs") and that the Defendant No.5 is the registered proprietor of said designs. 3. On the basis of the aforesaid understanding the Defendant No. 4 acknowledge the validity of the Plaintiff's Registered Designs and the Defendant No. 5's Registered Designs and undertakes that it directly or indirectly shall not challenge the validity of said designs, or assist any other party in challenging the validity of said designs, at any time within the remaining duration of the statutory term of such registrations. ;