Prabir Kumar Majumdar - (1.) THIS is an appeal from an order dated 18th December, 1986 passed by the Joint Controller of Patents and Designs, on an application for cancellation of registration of the Registered Design No. 154062 dated 21st February, 1984 filed by the respondent No. 3 herein under Section 51A of the Designs Act, 1911. By the order under appeal the Joint Controller of Patents and Designs allowed the application of the respondent No. 3 and cancelled the registration of Design No. 154062 dated 31st February, 1984.
(2.) THE facts as would appear from the paper book are shortly as follow: In or about February, 1984 the appellant made an application for registration of the said Design No. 154062 and by an order dated 21st July, 1984. The said design was registered under the Designs Act, 1911 being Design No. 154062 and the Certificate of Registration dated 21st July, 1984 was duly issued. The said Design is in respect of a design of a Comb. In or about October, 1984 the respondent No. 3 Crystal Plastics & Metalizing Private Limited made an application under Section 51A of the Designs Act, 1911 (hereinafter referred to as the said Act) for the cancellation of the design of the appellant on the ground that the Design had been previously registered in India and that the Design had been published in India prior to the date of registration. The appellant filed a counter statement to the said application of the respondent cancellation of appellant's said design. By an order, under appeal, dated December 18, 1986 the respondent No. 2, the Joint Controller of Patents and Designs, allowed the respondent's said application for cancellation of the registration of the appellant's design. The said application by the respondent No. 3 in this appeal was made inter alia, on the grounds: (1) that the design had been previously registered in India, and (ii) that the design had been published in India prior to the date of registration. At the time of hearing of the respondent's application for cancellation of the registration of appellant's desing, the respondents No. 3 did not press the first ground i.e., design had been previously registered in India. Therefore, the respondent No.3 passed and argued the second ground i.e., design has been published in India prior to the date of registration. The respondent No. 3 made an application dated 12th September, 1983 numbered 153451 to the Controller for registration of design to be applied to a comb of the respondent No. 3 and according to the respondent the said design for which the respondent applied for registration was identical to the design of the comb registered in favour of the appellant under Design No. 154062 dated 21st February 1984. The respondent's case is that immediately after filing of the said application for registration by the respondent on 12th September, 1983, it started marketing the comb on a large scale and earned good reputation. The Joint Controller of Patents and Designs, however, found that no evidence had been filed by the respondent No. 3 in proof of the respondent's said contention as to the good reputation of the respondent's comb or the large market therefore. The second contention of the respondent No. 3 before the Joint Controller of Patents and Design was that the appellant's comb under Design No. 154062 was not new or original in that it is only distinguishable from well-known prior construction by modification of a kind, which must be regarded as ordinary trade variations. This ground was, however, not seriously pressed and no finding was made by the Joint Controller on this contention.
(3.) THE main contention of the respondent No. 3 before the Joint Controller was that the design had been published in India prior to the date of registration of appellant's design. THE respondent No. 3 submitted before the Joint Controller that when after filing the said application in Design Application No. 153451 on 12th September, 1983 for registration of design of their comb under the Designs Act, 1911, the respondent No. 3 prepared the artistic work of the label/carton containing the design of the said comb and applied for registration thereof on 26th November, 1983 under the Copyright Act and got the same duly registered under No. A-45812/84 dated 30th August, 1984 under the provision of the said copyright Act. THE respondent's application fro registration of its own design which was made on 12th September, 1983 under the Design Act was, however, dismissed and it appears from the record as found by the Joint Controller that not design was registered under the Design application No. 153451 filed by the respondent on 12th September, 1983. THE Joint Controller, therefore found that said application for registration of the respondent's Design under Application No. 153451 could not be taken as a relevant documentary evidence as prior publication and he held that merely because the Design application No. 153451 was made on 12th September, 1983 before the Controller for registration prior to the date of the registration of appellant's Design under Application No. 154062, it cannot be held that the Design was previously published. THE Joint Controller, felt that it was not necessary for him to consider whether the desing of the application No. 153451 was identical or not to the registered Design No. 154062 of the appellant. He, however, found that except certain insignificant variations the two designs of the comb. THE Design of the respondent No. 3 registered under the Copyright Act, being A-45822/84 dated 30th August, 1984, and the Design of appellant registered under the Designs Act being 154062 are identical. Regarding prior publication, the Joint Controller observed that the said application of the respondent being Application No. 153451 was not open to public as no Design was registered on the application and the right to the proprietorship of the Design did not accrue to the respondent under the Act. The Joint Controller, however, found that from the certified extract of the entries in the Register of Copyright, it can be seen that work classified as artistic work was registered under No. 45822/84 dated 30th August, 1984 in the office of the Registrar of Copyright in the name of respondent company M/s. Crystal Plastic & Metallizing Pvt. Ltd. on the application made on 26th November, 1983. The Joint Controller also held that the extract of the entries in the Register of Copyrights showed that the respondent had stated in their application that their work which is a label was first published in India in 1983. The Joint Controller further observed that according to the provision of the Copyright Act, 1957, the Copyright in certain work are registered on the basis of the statements made by the applicant the respondent No. 3 in the prescribed application form and the particulars of such statements were entered in the Register of Copyrights under Section 44 of the Copyright Act and under the provision of Section 47, Copyright Act, the entries made in the register of Copyright after registration were open to inspection at all reasonable time and the entries made in the Register were prima facie evidenced of the said particulars under Section 48 of the Copyright Act, the Joint Controller, however, held that such evidence was not conclusive evidence but if any challenge as to the correctness of such particulars was made then the onus squarely lies on the party challenging the correctness of the entries to prove that the entries were incorrect.;