1991 PLP 382 (CLC)

(b) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article without the consent of the registered proprietor, to publish or expose or cause to be published or expose for sale that article. (2) If any person acts in contravention of this section, he shall be liable for every contravention‑‑ (a) to pay to the registered proprietor of the design a sum not exceeding five hundred rupees recoverable as a contract debt, or (b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly: Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed one thousand rupees. (3) When the Court makes a decree in a suit under subsection (2), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs." "S .2 14 . "S.

2. In this Act, unless there is anything repugnant in the subject or context. (1) ............... to (12) .................... (13) .................... (14) proprietor of a design, (a) where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed; and (b) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and (c) in any other case, means the author of the design; and where the property in, or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person." In the case of Barker v. Associated Manufacturers (Gowns and Mantles;, Ltd. (1933) 50 R.P.C. 332, the sole agent in the U.K. of an American Company had applied and obtained registration of designs for three toys which he sold under the agency, although the American Company had consented to the registering of design in his own name, it was held that `as he has not obtained any right to apply the designs, he was not the proprietor and the designs were expunged from the register. Moreover, it is not the design of the shape of the plaintiffs' brush which the defendants have imitated, but it is the setting of the bristles of the brush, which is the functional part of the plaintiff's brush which resembles the defendants' brush and therefore, also the plaintiff has no cause of action against it. It would, therefore, appear that the plaintiffs have no prima facie case, what to say of balance of inconvenience an irreparable loss. I, therefore, dismiss C.M.As. No. 5916/1990 and 5917/1990. , H.B,T./U‑96/K C.M. applications dismissed.