SOUMEN SEN, J. - (1.) This appeal is directed against the order dated 31st January, 2012 passed by the Assistant Controller of Patent and Designs (hereinafter referred to as the "said authority") in relation to a petition for cancellation of registration of Design No. 201728 under class 12-11 filed by M/s. Lucky Exports on 11th May, 2007.
(2.) The petitioner is aggrieved by the order passed by the said authority in allowing cancellation of the registered design of the petitioner. Shorn of details, the petitioner on 10th October, 2005 applied for registration of design for article "Coaster Brake Hub" under class 12-11 in the name of partners of the appellant on 9th May, 2006. The Patent Office issued the certificate of registration of design. The design consists of three sheets. The certificate mentions that the novelty resides in the shape, configuration and surface pattern of the "Coaster Brake Hub" as illustrated. The appellant on 5th March, 2007 filed a suit being O.S. Suit No.13 of 2007 against the respondent No. 3 for infringement of its registered design and copyright. On 11th May, 2007 the respondent no. 3 filed a petition for cancellation of registration of the aforesaid design. On 24th July, 2009 the Division Bench of the Punjab and Haryana High Court in FAO No. 3664 of 2007 directed the said authorities to dispose of the cancellation application. Upon hearing the parties, the said authorities dismissed the application for cancellation of design. Being aggrieved by the said order the respondent no. 3 filed an appeal being AID 7 of 2010 before this Court. The said appeal was disposed of by remanding the matter to the controller for a fresh decision on merit. The order of Justice Patherya in AID 7 of 2010 dated 17th May, 2011 directed the controller to consider two most important issues, namely, prior publication and the originality and novelty of the said design. The controller was directed to take into consideration all the evidence that have been annexed not only to the affidavit of evidence but also in the Ludhiana suit filed by the respondent no. 3. The learned Single Judge found the decision of the controller to be erroneous as the controller did not consider Velo Bike Special Issue in February 2005, which formed the part of the plaint in the Ludhiana suit filed by the appellant. On remand the matter was taken up for consideration by the authority. The authority on consideration of the materials-on-record, namely, the statement of case, counter-statement, evidences and submissions made by both the parties arrived at a finding that the respondent no. 3 was able to establish the grounds that the impugned design is not significantly distinguishable from known and previously published design and the design is not a new or original design.
(3.) On such finding the petition for cancellation of the registered Design No. 201728 was allowed.;