2008 PLP 227 (CLD)

MUNIB AHMED KHAN, J.

Learned counsel submits that the application has been coming for hearing since 8-5-2007 but has been adjourned despite specific dates. He submits that since defendants are still manufacturing and copying design of canopy, registered in the name of, plaintiff, therefore, there is great urgency so the defendant may be stopped from copying the same. He further submits that toward inventing the design in question, the plaintiff has incurred lot of amount and put in considerable time and got the said design registered with the Registrar of Design. He has referred Certificates of Registrar at pages 23, 33, 45, 55 and

65. He has also pointed out photocopy of the plaintiffs design at page 105 as well as of the defendant's design at page 99 of the file and has submitted that from the naked eye it can be judged that both the design of canopy are in total resemblance. To support his contentions, he has pointed out letter of the Registrar of design dated 29-4-2006 sent to the defendant available as Annexure "G." with the plaint in which it has been observed as follows:-- "The design sought to be registered it appears to be anticipated to prior Design No.12310-D and is publicly known in the market and. the Canopy to which such a design is applied has been generally on the sale long before the date of your application. The design is not, therefore, new or original within the meaning of section 3(2) of the Design Ordinance, XIV 2000. In view of the foregoing this is a prima facie case for the rejection of your application as above and in pursuance of the powers conferred on him by section 5(3) of the Design Ordinance XIV the Registrar is inclined to refuse the registration of the Design applied for ......................................................................." Today none is present for defendant. From the counter-affidavit of defendant it appears that it has not denied manufacturing of the canopy which is at page No.99 but has stated that design of both the canopy of the plaintiff and defendant are different. He has pointed out some differences, specially in para.7 of his counter-affidavit. After hearing the learned counsel, I have observed that there is apparently strong resemblance in both the canopies of the plaintiff and defendant and minor difference pointed out by the defendant, which are still subject to objection, cannot make much difference to remove the deception in respect to recognition as to whether both canopies are from one designer or not. The Registrar of design is also of the view that canopy of the plaintiff is registered with Design No.12310-D while the design applied for by the defendant was refused. In the circumstances, when apparently there is resemblance in both the designs, I grant the application of the plaintiff and defendants are restrained in terms of the prayer of the application during pendency of the suit. H.B.T./T-26/K Application granted.