1. ' C.MA. No, 5916/1990 is an application for injunction restraining the defendants from infringing the patented design of the plaintiffs. C.M.A. No, 5917/1990 is an application under Order 38, Rule 5, C.P.C.
2. Praying that the disputed tooth brushes manufactured by the Defendants be attached before judgment alongwith mould (dai), cam set, and other machinery and tools. Alongwith the applications Affidavits and Rejoinders have been filed by the plaintiffs, while counter-affidavits have been filed by the defendants.
3. ' The case of the plaintiffs in nutshell is that they are proprietors of a Registered Design. It is new and novel and the novelty of the said design consists in the shape of configuration of the tooth brush and the angled and the verticle bristle i,e. Bristle in the outer rows are slanting and those in the inner rows are upstanding. The design was registered in 1982 and is being manufactured by the plaintiff for the last so many years and commands extensive market in Pakistan. The defendants have infringed the said design by manufacturing tooth brushes similar to the registered design of the plaintiffs and are deceiving the public and causing damage to the plaintiffs.
4. ' In their counter-affidavit the defendant's main contention is that the alleged design of the plaintiffs is neither new nor original and that its registration, therefore, was invalid. It is principle of construction and a mechanical device for removal of the plaque and is not the features of the shape, configuration, pattern or ornament applied to the brushes. Apart from that the brushes of the brand `Signal', Peps dent' and 'Mentadent' are being manufactured in foreign countries such as Germany, England and U.SA. He has produced three such brushes. Of them 'Signal' is the tooth brush which was registered by Lever Brothers on 21-11-1975 in England. He has also produced his own brushes which are being sold with the name of 'Crystal' and `Medicam'. The shape of the plastic body of these brushes admittedly does not resemble the shape of the plastic body of the plaintiffs, while the setting of the bristles thereof resemble the setting of the plaintiffs' brushes 'Action', as has been shown in the plaint/application. Similar is the case with the two brushes 'Shield' and 'Meantadene produced by the defendants which were manufactured outside Pakistan.
5. It would, therefore, prima facie appear that M/s. Lever Bros. And other foreign Companies had been manufacturing tooth brushes wherein the bristles were set in the similar manner in which the bristles of the plaintiffs' brushes are being set. Hence it cannot be said that the plaintiffs' design is new or original throughout the world. Mr. Tufail Ibrahim submitted that the newness or originality of the style throughout the world is not to be taken as deciding factor, but it is the newness or originality of the design in Pakistan which is to be the deciding factor. I am afraid that I cannot agree with this contention of Mr. Tufail Ibrahim. A person, who has imitated a design from abroad, has no right to have a claim over it even if he gets it registered in Pakistan, because it is neither new nor original. Reference in this connection can be made usefully to Section 53 of the Patents and Designs Act as well as the definition of 'proprietor' given in subsection (14) of Section 2 thereof.
6. Sections 53 and 2 (14) read as under:-- S.53.--(1) During the existence of copyright in any design it shall not be lawful for any person--
(a) for the purpose of sale to apply or cause to be applied to any article in any class of goods in which the design is registered the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or,
(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."
7. "S.2 (14).
8. ' "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."
9. ' 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 plaintiffs brush which resembles the defendants' brush and therefore, also the plaintiff has no cause of action against it.
10. It would, therefore, appear that the plaintiffs have no prima facie case, what to say of balance of inconvenience and irreparable loss. I, therefore, dismiss C.M.As. No, 5916/1990 and 5917/1990.