Judgment:
1. This is an appeal filed from order dated 3rd February, 2010 by which the registered design of the appellant has been cancelled.
2. The case of the appellant is that on an application for cancellation of its registered design filed by the respondent, Affidavit of Evidence was filed both by the appellant and by the respondent. The design of the appellant was registered on 4th April, 2003. In the application for cancellation, the plea of prior publication was taken by the respondent. In the Affidavit of Evidence filed on behalf of the respondent, the advertisement relied on was of Raipur Alloys and Steel Limited in 2002. This has not been accepted by the Controller as a piece of evidence for prior publication. It is only on the basis of the invoices annexed in its Affidavit of Evidence that the Controller has held that there has been prior publication of the appellant’s design and, therefore, its registration cancelled.
3. The respondent in its reply to the appellant’s Affidavit of Evidence had denied the authenticity of the documents annexed and relied on by the appellant.
4. The appellant’s design has been registered in respect of “Rod For Reinforcing Concrete”, which are TMT rods. The invoices were disclosed by the appellant to meet the case of the respondent for cancellation of the registered design and an opportunity ought to have been given to it to deal with the same as held in AIR 1915 PC 7 and AIR 1953 Nagpur 154. For non-grant of such opportunity the order dated 3rd February, 2010 be set aside.
5. Counsel for the respondent in opposing the said appeal submits that the appellant’s design is neither new nor novel as it has been prior published and the purpose of such design is purely functional. The said will appear from the declaration given for registration purposes. Reliance is placed on Section 2(d) of the 2000 Act and in the light of such definition X-Rib on the appellant’s rods will have to be considered as either a design fit for registration or functional. The advertisements published by the appellant in various publications and disclosed will evidence its functional aspect. This has also been affirmed by the order dated 3rd February, 2010. Reliance is placed on Order 41, Rule 33 of the CPC, so also Order 41, Rule 22 of the CPC. Reliance is placed on AIR 1994 Cal. 55 and 2000 PTC 83. That the design is attractive to the eye is belied as stated in the counter-statement and is contrary to the advertisement. As it is purely functional, will disentitle the appellant to registration therein.
6. It has also been admitted by the appellant that for the first time, on 4th April, 2003, the idea of X-Rib design was conceived. Reinforcing steel TMT Bar with surface patterns of various design are manufactured by the appellant has also been admitted. The X-Rib surface pattern has become popular by virtue of advertisement in the media is also an admitted position. Reliance has been placed on invoices and two of the invoices relied on are dated 15th March, 2003 and 2nd April, 2003, i.e, prior to 4th April, 2003. Therefore, the said design was prior published and the appellant’s registration cannot be sustained. The Affidavit of Evidence wherein the said invoices have been furnished has been verified by Mr. M.M. Abraham the Vice-President of the said paragraph the deponent in paragraph 3 and has been affirmed as true to knowledge. As the admission has been accepted in view of non-denial the question of giving an opportunity to explain, does not arise as held in 2005 (1) CHN 346. Reliance has also been placed on IPLR 1995 (20) 119 and 24 PTC 449. User has been claimed by Raipur Alloy in 2002 and, therefore, the case of prior publication exists. AIR 1915 PC 7 and AIR 1953 Nagpur 154 has no application in the facts of the present case and in view of Section 145 of the Evidence Act.
7. In reply Counsel for the petitioner submits that the respondent has claimed development of the registered design in 2005 i.e. after the design was registered by the appellant in 2003. Novelty has been claimed in the surface pattern. In the affidavit of evidence filed in reply the respondent has disputed the advertisements and called for production of the original copies of invoice and bills.
8. Having considered the submissions of the parties the order of the Controller calls for no interference as the appellant relied on invoice issued by it in 15th March, 2003 and 2nd April, 2003 for X-Rib TMT Rods. This in itself is sufficient to negate the case of novelty and originality. The documents were enclosed by the appellant in its affidavit of evidence and such affidavit has been affirmed by the Vice-President of the appellant who was aware of the facts. In fact advertisement of 2002 has been relied on and the said advertisement is of the appellants X-Rib Rods. From the invoice dated 15th March, 2003 and 2nd April, 2003 it is also apparent that the said rods were sold by the appellant.
9. A(1915)PC 7 will not apply to the facts of the Case as the documents have been produced by the appellant and not produced in cross-examination as in the reported decision.
10. A(1953) Nag. 154 is distinguishable on facts as in the reported decision the admission relied on was in another case and exaggeration could not be ruled out.
11. In the instant case on the basis of documents produced the conclusion of admission has been reached.
12. So both the decisions cited by the appellants do not come to its aid more so in view of the decision reported in 1995 IPLR P. 119.
13. In the design submitted to the office of the Controller the appellant has categorically mentioned that the novelty resides in the surface pattern of the “rod for reinforcing concrete”.
14. In the advertisements also it has been mentioned that…………….. “SRMB 500+ Rebars have X-shaped Ribs which binds the steel with concrete better……………..”. This evidences the functional aspect of the registered design and is another reason for not interfering with the Order under appeal.
15. Another reason is that Para 3( i) of the affidavit of evidence affirmed on behalf of the appellant wherein the said invoice and advertisement have been mentioned are affirmed as true to knowledge by the deponent viz. the Vice-President of the appellant and in the light of such admission not to allow the appellant to deal with or explain the same cannot be termed as contrary to law.
16. For all the said reasons this appeal fails and is dismissed.