' By this civil miscellaneous application, plaintiff seek an order of restraint, restraining the defendant company from advertising, selling, importing, manufacturing or distributing the tooth brushes to the general public with the design identical to designs Nos.3915-D and 9273-D registered in the name of the plaintiff.
2. Plaintiffs' case in brief as per plaint is that they are registered proprietors of the design numbers referred to above with the Controller of Designs and Patents. While the first design was registered on or about 29-11-1993 in respect of bristles of tooth brush, the second design in respect of the handle of the tooth brush was registered w,e,f, 20-4-1995. Essentially the case of the plaintiffs is that the defendants in infringement of section 53 of the Patents and Designs Act, 1911 during the existence of copyright in favour of the plaintiffs are importing the tooth brush with identical design under the name of Colgate Zigzag Flexible and Colgate Flexible from South Africa and selling in the market at Rs,40 per piece. Besides the defendant Company is publishing public notices to promote the sale and marketing of such brushes in violation of the rights secured and guaranteed to the plaintiffs by virtue of registration in their favour. In the plaint besides seeking a permanent injunction plaintiffs have claimed damages in the sum of Rs,10,00,000 against the defendants.
3. In the counter-affidavit filed on behalf of the defendants, it is urged that in the first instance configuration in respect of the tooth brush was registered by the Controller Patents and Designs in favour of the National Detergents w,e,f, 8-3-1988 for a period of five years which has been renewed upto 7-3-1998. It is stated that National Detergents subsequently entered into an equity partnership and investment with Colgate Palmolive (USA) incorporated vide Certificate of Incorporation, dated 28-3-1990 from-the Registrar of Joint Stock Companies. It is further the case of the defendants that Colgate Palmolive (USA) incorporated after conceiving a design got it registered with the Controller vide Registration No,8833-D w,e,f, 6-6-1993. Defendant Company is not the manufacturer of any of the designs but they import the tooth brushes for sale in the market from South Africa manufactured by Colgate Palmolive, South Africa wholly owned subsidiary of Colgate Palmolive, USA.
4.. An affidavit in rejoinder was filed on behalf of the plaintiff controverting in general terms the plea taken in the counter affidavit and reiterating the averments made by the plaintiffs.
5. At the hearing of the injunction application, both the learned counsel referred to section 53 of the Patents and Designs Act, 1911, which reads as under:-- (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 license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or
(aa) to import for the purpose of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or
(b) knowing the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of goods in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed 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 contract debt, or
(b) if the proprietor elects to bring a suit for the recovery of damges 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."
6. While the grievance of the plaintiffs is that the defendant company has been infringing copyright of the registered proprietor of the design, the submission made by Khawaja Mansoor, learned counsel for the defendants is that they being lawful partners of Colgate Palmolive USA incorporated are the importers of tooth brushes from this company also incorporated in South Africa. It is urged that on the contrary plaintiffs have copied and imitated the original and new design registered in favour of the partners of the defendant company long before the registration in their favour.
7. Upon consideration of the contentions raised at the Bar, prima facie, it appears that the plaintiffs are the later registered proprietors of the designs referred to above. Colgate Palmolive are, however, the prior registered proprietors of the designs in Pakistan at least with effect from 8-3- 1988 which has been renewed upto 7-3-1998. For these facts and circumstances, I think, the prayer for a temporary injunction made by the plaintiffs cannot be granted by any stretch of reasoning.
Consistently, I am of the view that the defendants who are the importers of tooth brushes manufactured by their partners in South Africa cannot be restrained from advertising, publicising and selling the imported goods in the market as evidently such import is regulated by Import and Export authorities under the law of the land.
8. There is another aspect of the case namely the claim of damages by the plaintiffs in the suit.
Since the plaintiffs have estimated the damages/losses that may be occasioned by selling, advertising and marketing the imported goods by the defendants, no irreparable loss is likely to occur to them in the event of refusal of a temporary injunction. Irreparable losses being one of the essential conditions for the exercise of discretion in the grant of temporary injunction, plaintiffs are not entitled to it. Needless to overemphasize plaintiffs have failed to make out an excellent prima facie case in their favour entitling them to a temporary injunction. Likewise balance of convenience leans in favour of the defendants rather than the plaintiffs.
9. For the aforesaid facts and reasons, I am not inclined to confirm the interim order restraining the defendants as prayed. Injunction application is accordingly dismissed.