JUDGMENT
S.C. Jain, J.
(1) This order will dispose of three interim applications 10857/91, 2125/92, 3550/92. In brief, the facts of the case are that the plaintiff Smt Monika Chawla, as the sole proprietor of Kiddie Kraft, has filed a suit for permanent injunction for passing of and pirating the design of baby bouncer against National Trading Company, hereinafter called the defendant seeking a relief of permanent injunction restraining the defendant from passing of under the plaintiffs design of baby bouncer or any design or a design of any fraudulent imitation thereof in respect of the design of baby bouncer. A decree of mandatory injunction for delivery of all the aforesaid goods, finished or unfinished and other incriminating material including dies and moulds, in the possession or under the control of the defendant has also been claimed against the defendant. Rendition of account and damage has also been prayed for.
(2) In the suit, an- application for interim injunction was also moved being I.A. 6965/91. Vide order dated 9-7-91 Anil-Dev Singh, J. restrained the defendant from manufacturing, selling, advertising or offering for sale baby bouncers bearing the design propounded by the plaintiff. That interim order was confirmed by the court on 16-8-1991.
(3) Aggrieved, the defendant-applicant has filed these three applications for vacation of the interim order. All these applications have been contested by the plaintiff and replies have been filed by the plaintiff pleading, inter alia, that the plaintiff is engaged in the business of manufacture and sale of furniture meant for infants and childern. The plaintiff during the course of her business activities propounded in the year 1987 a new and original design of baby bouncer. The features and the get up of the plaintiffs goods i.e. baby bouncer has already become a distinctive indicium in relation to the said goods. That in order to get statutory protection to the new, original and novel design of baby bouncer, the plaintiff applied fqr registration in the Patent Office at Calcutta on 1.5.91. The registration of the design is legal and regular and still subsisting in law. By virtue of the registration, the plaintiff has right to manufacture and sell baby bouncer having the shape and configuration and distinctive features involved in the said design of .baby bouncer of the plaintiff and as such the plaintiff is claiming herself to be proprietor of the design of the baby bouncer. She has also mentioned that the sale of her baby bouncers has been increasing year after year.
(4) According to the plaintiff, the defendant started manufacturing and selling baby bouncer bearing the shape and configuration having a fraudulent or obvious imitation to that of the plaintiffs design w.e.f. 29.4.91 without license and written consent of the plaintiff and as such the defendants have no right to pirate this design of the plaintiff. Injunction order granted is justified.
(5) Learned counsel for the. defendants-applicants submitted that the plaintiff is the praetor and not the proprietor of the propounded design of the baby bouncer as is evident from the affidavit of Mr O.P. Goyal. M/S. Nursery Creations Bombay is the original manufacturer and creator and such type of baby bouncer have been in use prior to 1987 as the plaintiff claims to have propounded in January, 1987. He relied upon various bills issued by Nursery Creation of this article. According to him, a praetor has no right in equity to claim this injunction. He stated that on 21.12.91 one Lok Nath Bajaj got this design registered under No. 163931 and be assigned the same in favor of the defendant vide assignment deed dated 14.3.92 and the defendant has been registered as licensee of the said design with the Controller of Patents and Design. Later on, Realizing (be mistake that instead of filing form No.25 the defendant filed form No.26; the defendant applied for registration as proprietor. The same is pending,Thus the defendant is the proprietor of design registration No. 163931 by assignment. According to him when the design of both the parties are registered then no injunction can be issued. There is no passing off any design. He relied upon various decisions reported in 1983 Ptc 359,1989 Ptc 129, 1991 Ptc 233 and in support of his contention. He argued that when recording of the assignment is pending,still the protection is available to the assignee. He also drew my attention to the fact that the defendant has filed a petition for cancellation of registered design of the plaintiff in this court on the ground that design is pre-published. That cancellation petition is bound to succeed. According to him the scheme of the Designs Act 1911 is that a design which is sought to be registered should not .be a pre- published design and should be a new and original design at the time of filing of the application. Therefore, the plaintiff has no specific right in this design. Plaintiff has got the design registered in 1991 by playing fraud.
(6) It is apparent from the record that the plaintiff got the design registered at No. 163216 dated 6.5.91 at the Patent’s office Controller General of PatenIs, designs and Trade marks as per the provisions of Designs Act, 1911 and the Designs Rules 1933. This registration of the design in the name of the plaintiff, admittedly is prior to the registration of the design in the name of Lok Nath Bajaj. The plaintiff is still the registered proprietor’ of the design of baby bouncer. As per the averments of the defendants, they are recorded as licensee on the basis of assignment made by Lok Nath Bajaj and proceedings for registration as proprietor are still pending meaning thereby that till today the defendants are not proprietor of this registered design. They are only licensee of the said design with the Controller of Patents and Designs. Till they are recorded as proprietor they cannot claim better right over that of the plaintiff. The plaintiff has produced documents to show that she has been using the design since 1987 and got it registered on 6.5.91. Whereas,according to the defendant itself, it was Lok Nath Bajaj, who got this trade mark registered on 21.12.91 and after registration of the design, assigned the same by assignment deed dated 14.3.92 and they have been recorded as licensee. From whatever point of view we look , the defendants have no superior right over the design of baby bouncer at the moment. Therefore, on the basis of the material on record I find no ground to vacate the injunction order already granted in favor of the plaintiff. All these applications for vacation of interim order dated 9.7.91 and confirmed on 16.8.91 are dismissed. There is no order as to costs.
(7) List this matter before the Deputy Registrar on 10-5-1993 for completion of pleadings, filing-documents, admission/denial and thereafter the matter be listed in Court for framing of issues.