Appeal against refusal of interim relief dismissed. Where a rectification petition against the plaintiff's own registration is pending, section 124(1)(b)(i) requires the suit to be stayed until it is determined, and although section 124(5) preserves the power to grant interim relief, its exercise is discretionary. The District Judge was entitled to assess whether a sufficiently strong prima facie case had been made out and to find none, there being no sufficient material that the relevant class of consumers was likely to be confused. Authorities affirming the statutory presumption of confusion under section 29 were distinguished as decided where validity was not in issue.
Appeal against refusal of a temporary injunction dismissed in a dispute over a bottle shape. The decisive point was that the first appellant had registered only his word mark and had never registered the design of the bottle, and section 22 of the Designs Act deals with piracy of registered designs alone. There was also no prima facie evidence that the design had been invented for him rather than imitated from designs already common in the industry, the respondent having produced photographs of similar bottles and the appellants having themselves impleaded seven other manufacturers.
Suit under the Designs Act, 2000 decreed in part: permanent injunction and surrender of infringing materials granted, damages refused. On originality the Court held that the test under the Designs Act is limited to whether the registrant is the author of the design and whether it was published or registered before the application, and that designs built up over years of development, with gradual improvements made on customer feedback and market requirements, satisfy it. The registrations of design Nos.193288 to 193291 stood unchallenged and uncancelled, and the defendants' plea that the plaintiffs had themselves copied two United Kingdom manufacturers failed for want of any material to prove it. Under section 11(1) read with section 2(c) the sole right to exploit the designs vests in the registered proprietor and its authorised dealer, so no one else may deal in goods in violation of them, and section 22(1)(a) prohibits imitation without the licence or written consent of the registered proprietor, neither of which the defendants produced. Once the plaintiffs proved registration and ownership, the onus shifted to the defendants to show that their goods did not imitate the registered designs or that they held a licence, and they failed to discharge it. The first defendant, a former employee who had signed a secrecy agreement in 1993, was estopped from disputing its terms, and his plea that the agreement was invalid for want of stamping was untenable: he resigned in December 2002 and his mother-in-law's firm began dealing in the same goods in January 2003 with no manufacturing facilities or experience, which he conceded in cross-examination. Damages were refused because, although section 22 entitles a registered proprietor to sue for damages, no pecuniary loss was established.
