Symphony Ltd. v. Life Plus Appliances

1. Symphony Ltd. (hereinafter, ‘Plaintiff’) has filed the present suit for permanent injunction restraining infringement of its registered designs and for damages. The Plaintiff is a company, which is engaged in the business of manufacturing and selling of consumer home appliances including air coolers. The three models of air coolers of the company, designs of which are registered, are as under: Design No. Model Date of Registration 235189 Symphony Storm 70i 14th March, 2011 198241 Symphony Winter 20th January, 2005 227069 Symphony Sumo 4th February, 2010

2. Copies of the registration certificates, along with the representation sheets for each of the models have been filed on record and have been exhibited as Ex.PW-1/7, Ex.PW-1/8 & Ex.PW-1/9.

3. All the three above designs are registered under the Designs Act, 2000 2019:DHC:1386 and are valid. The designs were registered in the name of Mr. Achal Anil Bakeri, who is one of the promoters of Symphony Limited. Vide assignment deed dated 30th October, 2013 (Ex.PW-1/10), the designs have been assigned by Mr. Bakeri to the Plaintiff company, which is promoted by him. Pursuant to the said assignment, the company has since been registered as the subsequent proprietor of the three designs. Ld. Counsel further confirms that all three design registrations have been renewed and are valid.

4. The suit has been filed against M/s. Life Plus Appliances on the premise that the Defendant commenced manufacturing and selling of air coolers, which are replicas of the Plaintiff’s designs. The suit was listed on 11th June, 2014 and an ad-interim injunction was granted in the following terms.

5. Thereafter, the Defendant has entered appearance and has filed its written statement. The case of the Defendant in its written statement is that the designs are prior published. The Defendant has placed on record the advertisements of the Plaintiff’s products dating back to March, 2010 wherein the Plaintiff had advertised various models of air coolers. The Defendant has also relied upon two trademark applications filed by the Plaintiff for registration of the marks ‘Winter’ and ‘Symphony Sumo’ dated 13th December 2004 and 7th March, 2000 and bearing application nos. 1326899 & 908726 respectively. Further, the Defendant pleaded that its designs are different from the Plaintiff’s registered designs.

6. In its replication, the Plaintiff avers that filing of trademark applications does not show that air coolers, bearing the registered designs, were launched at the time when the trademark applications were filed. In fact, it was only after 14th March, 2011, which is the effective date of registration, that the Symphony Storm 70i air cooler was launched. The other two registrations are prior to the advertisements relied upon by the Defendant.

7. The Defendant initially appeared in the matter, however, since October, 2015, the Defendant stopped appearing. On 27th April, 2017, the Defendant was proceeded ex-parte. The Plaintiff has led evidence of its witness Shri Avshesh Sharma as PW-1. The statement of the said witness has also been recorded. The witness has relied upon various exhibits, which are:  Ex.PW-1/1 - Certified copy of the Board Resolution dated 26th May,  Ex.PW-1/2 - Copy of the suit for permanent injunction being C.S. (OS) No. 1456 of 2014 filed by Plaintiff.  Ex.PW-1/3 - Catalogue of air cooler products of the Plaintiff  Ex.PW-1/4 - Chartered Accountant's certificate for statement of annual turnover of the Plaintiff from 1991 to 2013.  Ex.PW-1/5 - Chartered Accountant's certificate for statement of sales promotion and advertisement expenses incurred by the Plaintiff from 1991 to 2013.  Ex.PW-1/6 - Chartered Accountant's certificate for statement of research and development expenses incurred by the Plaintiff from 2009 to 2013.  Ex.PW-1/7 - Copy of registration Application and Certificate of registration of design no.235189 (Symphony Storm 70).  Ex.PW-1/8 - Copies of Registration Application and Certificate of  Registration of Design No.227069 (Symphony Sumo).  Ex.PW-1/9 - Copies of Registration Application and Certificate of  Registration of Design No. 198241 (Symphony Winter).  Ex.PW-1/10 - Copy of the Assignment Deed dated 30th October, 2013  Ex.PW-1/11 - Copies of the Patent Office's letters, all dated 24th April,

2014.  Ex.PW-1/12 - Original 'Life+Plus' brochure of air cooler products

8. A perusal of the two brochures i.e. the Plaintiff’s and Defendant’s brochures shows that the Defendant’s products of air coolers with the model names Tower and Tycoon are substantial imitations of the Plaintiff’s models Symphony Sumo, Symphony Winter and Symphony Storm 70i. The design registrations placed on record show that these are old designs and have been in use for a substantial period of time. The case of the Defendant is that it launched the products bearing the marks Tower and Tycoon, but the written statement is silent on the aspect as to when the said products were launched. Thus, there is no claim of prior use by the Defendant. A perusal of the three registered designs reveals the following: i) Design No.235189 dated 14th March, 2011 corresponds to the Plaintiff’s Symphony Storm 70i model. A comparison of the said air coolers of the Plaintiff, with the Defendant’s model by the name Tower, shows that the same are substantially identical. The brochures of the Plaintiff and those of the Defendant are on record as Ex.PW- 1/3 and Ex.PW-1/12. The Tower model of the Defendant is thus an infringement of the Plaintiff’s design no.235189. ii) The Defendant’s model Tycoon is an imitation of design nos. 227069 and 198241 of the Plaintiff, which are sold as Sumo and Winter respectively by the Plaintiff.

9. The sales figures of the Plaintiff are substantial, as is evident from the chartered accountant’s certificates as to annual turnover (Ex.PW-1/4), sales promotion expenses (Ex.PW-1/5) and research and development expenses (Ex.PW-1/6). The sales turnover of the Plaintiff for the financial year ending 30th June 2013 is to the tune of more than Rs. 300 crores and the expenditure on sales promotion and advertisement for the same financial year is approximately Rs. 14 crores. The Defendant has obviously attempted to pirate the Plaintiff’s designs. Under the law of designs, it is the settled principle that the overall look of the product is to be seen and the same is to be judged with the naked eye. An intricate examination of the design is not to be done. Under Section 22 of the Designs Act, 2000 the use of any design, which is an obvious imitation of a registered design, constitutes piracy of the registered design. The case of the Defendant, that the designs are prior published, is merely based upon the advertisements and trademark applications of the Plaintiff, both of which have been duly explained by the Plaintiff. Two of the designs are prior to the advertisement relied upon and the third design, which is registered and sold by the Plaintiff under the mark Symphony Storm 70i, is not identical to the designs contained in the advertisement. Further, the applications for trademark registrations do not constitute prior publication of the designs, as the same only contain the model names but do not contain the photographs of the products. The Defendant being ex-parte has chosen not to contest the case and has also not discharged the burden of showing that the designs are prior published.

10. Under these circumstances, there is no reason to disbelieve the Plaintiff’s case and the evidence put up by the Plaintiff. The suit is, accordingly, decreed in terms of the prayer (a) of the prayer clause. Since the Defendant contested the matter for some time, at least until 2015, and thereafter chose to remain absent, damages of Rs.[3] lakhs are awarded in favour of the Plaintiff. Under the facts and circumstances of the case, the Plaintiff is also entitled to actual costs. Let the bill of costs be submitted by the Plaintiff. Decree sheet be drawn up.

14. Suit is decreed in the above terms.

PRATHIBA M. SINGH JUDGE FEBRUARY 28, 2019