2019 PLP 1259 (CLD)

ZAFAR AHMED RAJPUT, J.

By this order, I intend to dispose of C.M.A. No. 9140/2018 filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. and section 8 of the Registered Designs Ordinance, 2000 ("the Ordinance 2000"), for grant of interim injunction restraining the defendant No.1, its agents, representatives, attorneys and all persons acting for and on behalf of the defendant No.1 from copying, and/or applying the plaintiffs registered Design No.17776-D to any article and from making, importing, selling, hiring, offering to sell or hire or working on articles bearing or embodying a design which is a copy of the Design No.17776-D or bearing or embodying a design not substantially different from Design No.17776-D and also restraining the defendant No.2, its agents, representatives, attorneys and any person acting for and on behalf of the defendant No.2 from manufacturing the plaintiff's registered Design No.17776-D. On being served with the notice, the defendant No.1 has filed counter affidavit to the application. Learned counsel for the plaintiff has mainly contended that the plaintiff is the registered proprietor of Design No.17776-D (Registered Design) in terms of the Ordinance 2000 and Patents and Designs Rules, 1933 and manufacture fiber canopies in terms thereof under the trade mark, namely, "BODYCAB". He has further contended that the defendant No.1 is not authorized to manufacture fiber canopies and he has maliciously hired the defendant No.2 to imitate copy and cause infringement of Registered Design of the plaintiff and he is selling such fiber canopies to Sindh Police for fitting on the Sindh Police Hilux vehicles under a tender which is for 479 vehicles, while defendant No.1 has already supplied about 150 fiber canopies for such vehicles to Sindh Police; hence, defendants Nos. 1 and 2 are unlawfully operating a joint venture to the considerable loss and damage to the plaintiff; as such, plaintiff is suffering irreparable loss and harm to its business and reputation of his Registered Design by reason of infringement of the same by the defendants and in case the defendants are not restrained from carrying out infringement of plaintiffs Registered Design, they will continue to cause loss to the plaintiff. He has also contended that plaintiff has got a prima facie case and the balance of convenience also lies in its favour for grant of interim injunctive order. On the other hand learned counsel for defendant No.1 has maintained that the defendant No.1 is a qualified mechanical engineer and on the recommendations of Purchase Committee, the I.G. Sindh Police placed purchase order with defendant No.1 for making canopies on 464 pickups with bar light on the terms and conditions as mentioned in the contract agreement dated 8.2.2018 and prior to the execution and signing of the contract the defendant No.1 submitted tender/bid document to the Police Department on their publishing tender in newspaper; however, the plaintiff never informed that they have got the alleged design registered from the Patent Officer/Registrar of Designs and it neither raised any objection nor claimed any monopoly. He has further maintained that the plaintiff has not right to get alleged design registered and claim injunction on the basis of alleged design for Police Mobile. He while filing statement added that the defendant has completed the order of making canopies for 464 police vehicles in terms of contract dated 08.02.2018; hence, this application has become infructuous. Heard the learned counsel for the parties and perused the material available on record. The plaintiff claims that it is a registered proprietor of Design No.17776-D in terms of Ordinance 2000 which has not been denied by the defendants. It is case of the defendant No.1 that plaintiff has not right to get the alleged design registered; however, it is an admitted position that the defendants have not challenged the Registered Design of the plaintiff before the relevant forum. The terms "Registration of Design" and "Design" have been defined under section 2(d)(e) of the Ordinance 2000, which reads as under:- (d) "registration of design means the right to prevent third parties from applying a design to an article and from making, importing, selling, hiring or offering for sale or hire any article in respect of which a design is registered, being an article to which the registered design or a design not substantially different from the registered design has been applied, and from making anything enabling such article to be made as aforesaid. except with the license or written consent of the registered proprietor; (e) "design means features of shape, configuration, pattern or ornament applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged solely by the eye, but does not include a method or principle of construction of features of shape or configuration which are dictated solely by technical and functional considerations." Further section 8 of the Ordinance 2000 provides that if any person infringes a registered proprietor's right, the registered proprietor may bring a suit against him for the recovery of damages and for an injunction against continuation of the infringement. I have examined the photographs of canopies submitted by the plaintiff as well as defendant No.1 which shows prima facie that there is no substantial difference in the canopies prepared by the defendant No.1 than the Registered Design of the plaintiff and as such the same appears to be similar in immediate impression. Although it has been contended by the learned counsel for defendant No. 1 that they have already prepared canopies for 464 police vehicles but there is a possibility that such infringement of plaintiff's Registered Design may be continued in future. Hence, holding that the plaintiff has made out a prima facie case for the grant of interim injunction as he is admittedly proprietor of the Registered Design and he will suffer irreparable loss in case of continuation of its infringement, so much so the balance of convenience lies in favour of the plaintiff as the defendants have no right to utilize the Registered Design, I allow the injunction application as prayed. Needless to mention here that the observation made by this Court hereinabove are tentative in nature and will not affect the main suit after recording pro and contra evidence of the parties.

1. Adjourned. ZC/T-15/Sindh Application allowed.