Bombay High Court
Atomberg Technologies Private Limited vs Luker Electric Technologies Private … on 25 July, 2025
Author: M.S.Karnik
Bench: M.S.Karnik
2025:BHC-OS:11853-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO. 16459 OF 2023
WITH
INTERIM APPLICATION (L) NO. 16511 OF 2023
Atomberg Technologies Private Limited ]
A company incorporated under the Companies ]
Act, 1956 having its registered office at ]
th
Office No. 1205, 12 Floor, Rupa Solitaire, ]
Millennium Business Park, Thane-Belapur Road,]
Mahape, Navi Mumbai, Maharashtra-400710 ]
and Corporate office at Bus Stop, 247 Park, ]
Lal Bahadur Shastri Road, Gandhi Nagar, ]
th
13 Floor, Hindustan C, Mumbai, ]
Maharashtra- 400 079. ]... Appellant
Versus
Luker Electric Technologies Private Limited ]
A company incorporated under the ]
Companies Act, 2013 having its address at ]
1806, Lodha Supremus, Saki Vihar Road, ]
Opp. M.T.N.L. Building, Andheri (East), ]
Mumbai - 400 072. ].... Respondent
****
Dr. Veerendra Tulzapurkar, Senior Advocate a/w. Mr. Hiren Kamod,
Mr. Vaibhav Keni, Mr. Prem Khullar, Ms. Neha lyer and Ms.
Proutima Ray i/b Legasis Partners for the Appellant.
Mr. Ravi Kadam, Senior Advocate a/w. Mr. Ashish Kamat, Senior
Advocate, Rashmin Khandekar, Mr. Ameet Naik, Ms. Megha
Chandra, Madhu Gadodia, Anisha Nair i/b Anand and Naik for the
Respondent.
****
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CORAM : ALOK ARADHE, CJ &
M.S.KARNIK, J.
RESERVED ON : 13th JUNE 2025
PRONOUNCED ON : 25th JULY 2025
JUDGMENT (PER M.S.KARNIK, J.) :
1. The appellant – Atomberg Technologies Private Limited
(Atomberg for short) is the original plaintiff. Atomberg is
aggrieved by the order passed by the learned Single Judge of this
Court dated 05/06/2023 dismissing the interim application (‘IA’,
short) in Commercial IP Suit filed by Atomberg thereby refusing to
grant interim injunction against the respondent (Luker Electric for
short) original defendant.
2. The facts pleaded in the plaint and the application for
interim reliefs in the context of its registered design of ceiling fan
‘Atomberg Renesa Ceiling Fan’ need to be briefly stated.
3. The design in respect of the suit fan was registered on
08.09.2018. Atomberg has come out with a case that it was served
with caveats filed by the Luker Electric before this Court and
District Court at Ernakulam in Kerala, sometime in the last week of
September 2022, when it was realised that Luker Electric had
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obtained registration for two ceiling fans : Size Zero Fan 1 and
Size Zero Fan 2. It is Atomberg’s case that the said registration
was obtained on 21.03.2022 by Luker Electric in a fraudulent
manner as the impugned designs and ceiling fans of Luker Electric
infringe upon the registered design of the ceiling fan of Atomberg.
Atomberg says that further enquiry revealed that only the fan with
impugned design Size Zero Fan 1 was introduced into the market
and ceiling fan as per the impugned design Size Zero Fan 2 was yet
to be introduced in the market. It is the case of the Atomberg that
Luker Electric had committed the act of infringement as also the
tort of passing off.
4. Shri Tulzapurkar, learned Senior Advocate for Atomberg
while narrating the facts stated that Atomberg started its
production of ceiling fans in the year 2015, selling the same online
from the year 2016 and further that in the year 2018 Atomberg
entered in retail market all over India. Atomberg has high profile
clients and it has been given awards, details of which have been
given in paragraph 4 of the plaint. Atomberg claims to have used
two house-marks Atomberg and Gorilla. It is further stated that
with passage of time, Atomberg gave up the use of its house-mark
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Gorilla. It is also stated in paragraph 8 of the plaint that any
reference to Atomberg Renesa Ceiling Fan includes Atomberg
Gorilla Renesa Ceiling Fan. In paragraph 9 of the plaint, it is
stated that the design of the Atomberg Renesa Ceiling Fan was
created in September 2018 by Directors of Atomberg and
registration was secured under the Designs Act, 2000 (hereinafter
referred to as ‘the Designs Act‘, for short) on 08.09.2018. The
Directors gave permission to Atomberg to use the said registered
design and subsequently, on 15.02.2021, they executed a deed of
assignment in favour of Atomberg. On this basis, Atomberg claims
proprietary rights in the said registered design bearing registration
no. 309694 in class 23-04. The copy of the registration certificate
is placed on record along with the plaint. Then in paragraph 10 of
the plaint, Atomberg has stated in detail as to what, according to
it, are the unique features of the said registered design. The
appellant claims that such features give an aesthetic look to the
aforesaid ceiling fan of Atomberg called Atomberg Renesa Ceiling
Fan. Atomberg says that it has earned tremendous goodwill. To
support this statement, Atomberg relied upon the sales turnover
figures for the year 2021-2022 to the tune of
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Rs.1,03,64,53,181.45. It is Atomberg’s case that the aforesaid
ceiling fan is immensely popular owning to its design and aesthetic
look and that Atomberg has been using the said design, openly,
continuously and extensively since the year 2018. Atomberg
claims that it has been vigilant in protecting its proprietary rights
pertaining to the said registered design.
5. Atomberg has provided details of the enquiries made in
the context of the Luker Electric. The enquiries revealed that
registration was effected of the impugned designs on 21.03.2022
for Size Zero Fan 1 and Size Zero Fan 2 of Luker Electric.
Atomberg provided a table of comparison of the rival products,
seeking to highlight the similarities in the two, alleging that Luker
Electric has slavishly copied the essential and fundamental features
of the registered design of Atomberg. On the basis of such
pleadings, Atomberg filed an application seeking interim reliefs
before the learned Single Judge in the context of infringement and
passing off against Luker Electric.
6. Luker Electric filed its detailed reply along with documents
in support of its case opposing the interim application. According
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to Luker Electric, it is not a fly-by-night operator and that instead,
it is a well-established company in the ceiling fans market and that
it has invested crores of rupees for developing its infrastructure as
well as research and development. The sales turnover of Luker
Electric for the financial year 2021-2022 is Rs.299.42 crores.
Luker Electric claims to have designed the two fans after extensive
research and development.
7. Luker Electric alleged that Atomberg has indulged in
suppression of material facts, particularly the fact that the design
of Atomberg in question was already published in public domain
by Atomberg itself thereby indicating that the registration of
design of Atomberg, at the prima facie stage itself, is unsustainable
and cannot be relied upon. Atomberg has placed on record certain
posts of Atomberg in the public domain of August 2018 which
according to Luker Electric were prior to registration of the design
of Atomberg on 08.09.2018. Specific reliance was placed on
Exhibits Q, R and S in that regard. To further demonstrate that
design of Atomberg was already in public domain, reliance is
placed on certain delivery challans and invoices, although the fans
based on the said design were called Gorilla Ceiling Fans.
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8. According to Luker Electric, there is nothing novel or
unique in the design of Atomberg, thereby contending that
registration of the design itself could not have been granted to
Atomberg as per the provisions of the Designs Act. It is the case of
Luker Electric that the features of Atomberg’s design highlighted in
paragraph 10 of the plaint, all refer to functional features, thereby
indicating that the registration of the design could not have been
granted. Luker Electric has pleaded in the reply that the claim of
Atomberg is hit by Section 4(c) of the Designs Act, which provides
that there is prohibition of registration of a design, which is not
significantly distinguishable from a known design or combination
of known designs. The case made out by Luker Electric is that at
best, the design of the Atomberg is nothing but a trade variant. It
is then the case of Luker Electric that there are material differences
in the rival designs and a table is placed on record to highlight the
same. On the aspect of passing off also, it is submitted that no
case is made out as per settled law, for the reasons that mere
similarity of shape is not enough, but something more is required
to claim the tort of passing off.
9. Learned Single Judge upon hearing learned counsel and
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upon perusing the pleadings and the documents on record, for the
reasons mentioned in the order impugned, dismissed the interim
application.
10. The interim application was filed for the following reliefs.
“(a) that pending the hearing and final disposal of the
suit, the Defendant by itself, its directors, dealers.
stockists, distributors, servants, agents and all person
claiming under or through it be restrained by a temporary
order of injunction of this Hon’ble Court from
infringing/pirating the Plaintiff’s design of the said
Atomberg Renesa Ceiling Fan bearing registration
no.309694 in class 23-04 by the use of the Impugned Size
Zero Fan 1 shown at Exhibit “H” and Impugned Size Zero
Fan 2 at Exhibit “H-1″or any other fan which is a
fraudulent or obvious or slavish imitation or resembling
with the Plaintiff’s said Atomberg Renesa Ceiling Fan;
(b) that pending the hearing and final disposal of the suit,
the Defendant by itself, its directors, dealers. stockists,
distributors, servants, agents and all person claiming
under or through it be restrained by a temporary order of
injunction of this Hon’ble Court from manufacturing
and/or selling and/or marketing and/or retailing and/or
exporting and/or distributing and/or trading and/or
exhibiting for sale and/or advertising and/or otherwise
dealing in fans bearing the shape, configuration, design of
the Impugned Size Zero Fan 1 shown at Exhibit “H” and
Impugned Size Zero Fan 2 at Exhibit “H-1” or any other
fan bearing shape or design which is identical with and/or
deceptively similar to the shape, configuration, design of
the Plaintiff’s said Atomberg Renesa Ceiling Fan / said
Atomberg Renesa Ceiling Fan, so as to pass off or enable
others to pass off the Defendants’ fan/goods as and for the
Plaintiff’s well-known fan/goods or in any other manner
whatsoever,
(c) that pending the hearing and final disposal of the suit,
the Court Receiver, High Court, Bombay be appointed
under Order XL Rule 1 of Civil Procedure Code, 1908, as
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the Receiver of the Defendant’s impugned fans bearing
shape, configuration, design which are a fraudulent or
obvious or slavish imitation of and/or identical with
and/or deceptively similar to the shape, configuration,
design of the Plaintiffs said Atomberg Renesa Ceiling Fan /
Atomberg Renesa Ceiling Fan for which the Plaintiff has
secured design registration, with all powers to enter in the
premises of the Defendant without giving notice to the
Defendant and/or its director/s, servants, stockists,
distributors and agents and all other persons claiming
through and/or under it at any time of the day or night
(including on Sundays, Court holidays and vacations) and
with the help of the police, if necessary, with no costs to
the Plaintiff, to break open the lock/s if deemed necessary,
to seize and take charge, possession and control of the
impugned fans and also to take control, charge and
possession of moulds / dyes used for manufacturing the
impugned fans, records, account books showing
manufacture, stock and/or sale of the impugned fans
bearing the impugned design in possession and control of
the Defendant and/or its director/s, servants, stockists,
distributors and agents and all other persons claiming
through and/or under it:
(d) that pending the hearing and final disposal of the suit,
this Hon’ble Court be pleased to order and direct the
Defendant, its director/s, servants, stockists, distributors
and agents and all other persons claiming through and/or
under it from giving and/or making complete disclosure of
documents including revealing on oath: (a) the name/s
and address/es of the people/parties to whom such goods
have been sold, (b) the name/s and address/es of the
people/parties who would have with them blocks, moulds,
dyes, stencils, rollers, cylinders or other machinery used to
manufacture the impugned fans bearing the impugned
design as complained off hereinabove, (c) the Defendant’s
assets; and pursuant to such disclosures being made the
Defendant be restrained from disposing of or dealing with
its assets in any manner whatsoever including in a manner
which may adversely affect the Plaintiff from recovering
damages, costs or other pecuniary remedies from the
Defendants as this Hon’ble Court may award.”
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11. Mr. Tulzapurkar, learned Senior Advocate for Atomberg
assailing the impugned order submitted that the learned Single
Judge erred in relying upon the documents relied upon on behalf
of Luker Electric especially at Exhibits Q, R and S which by no
stretch of imagination depict the suit fan of Atomberg but bare
perusal of the documents shows them depict different fan from
Atomberg’s Gorilla Renesa Fan and Atomberg Renesa+ fan.
Learned Senior Advocate submitted that the Single Judge erred in
relying upon these documents while forming an opinion that these
documents create an impression that Atomberg’s design was
already in public domain and published prior to the date of
registration i.e. 08.09.2018. Mr. Tulzapurkar submitted that the
Single Judge was in error in appreciating the documents relied
upon by Atomberg and the explanation thereto which in fact
clearly indicates that the fan relied upon by the Luker to claim that
it is in public domain is a distinct and different fan. Learned
Senior Advocate submitted that Renesa+ fan was, in fact,
produced before the Single Judge by Atomberg during the oral
argument to demonstrate that it has a different design and
different aesthetic appeal than the suit fan.
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12. Mr. Tulzapurkar was at pains to point out that the
differences between the fans which Luker Electric claims to be in
public domain and that of the suit fan are substantial and enough
to make the design of the appellant’s fan novel. It is submitted
that Atomberg Renesa+ fan and Atomberg Ceiling fan which was
produced during the hearing before the learned Single Judge
clearly establishes that the aesthetic appeal of Atomberg Renesa+
fan and Atomberg Ceiling fan is completely different from the suit
fan, especially, due to the difference in the size, curvature of the
blade and the canopy of the motor of the fans. It is submitted that
the learned Single Judge has not properly appreciated the law laid
down by this Court in Frito-Lay North America Inc and Ors. Vs.
Balaji Wafers Pvt Ltd.1
13. It is submitted that an important aspect overlooked by the
learned Single Judge is that a change made in an already available
design may be trivial when considered from the standpoint of
some articles, but may, on the other hand, be substantial in case of
some others as in the present case. It is, therefore, submitted that
the entire approach of the learned Single Judge in holding that
1 2020 SCC OnLine Bom 2375
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publication of Atomberg Renesa+ fan amounts to prior publication
of the suit design of the Atomberg Renesa Ceiling fan is contrary to
the record. It is further submitted that the findings of learned
Single Judge that the design of the suit fan i.e. Atomberg Renesa
Ceiling fan is a trade variant is erroneous. It is submitted by
learned Senior Advocate that the learned Single Judge has
completely overlooked the claim made by the Atomberg in para 10
of the plaint wherein it claimed novelty in the aesthetic appeal i.e.
shape and configuration of the suit fan along with the combination
of feature and that aesthetic look and design along with feature set
out in para 10 has never been combinedly used for any fan prior to
the Atomberg’s registration of its design on 08.09.2018. Our
attention is invited to the decision of this Court in Videocon
Industries Ltd Vs. Whirlpool of India Ltd.2 to contend that if the
product is designed with the purpose of making it more attractive
to the buyer by giving it a particular pleasing shape, then the
innovation lies in the aesthetic appeal.
14. An important aspect according to Mr. Tulzapurkar,
overlooked by the learned Single Judge is that the design
2 2012 SCC OnLine Bom 1171
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registration dated 08.09.2018 of the suit fan is a single product of
Atomberg and is just one of the many different fans sold by
Atomberg under the house marks “ATOMBERG” AND “GORILLA”
and the mere use of “ATOMBERG” AND “GORILLA” in respect of
earlier fans from 08.09.2018 does not amount to prior publication
and cannot be a ground to invalidate Atomberg’s design
registration. It is submitted that the refusal of the injunction as
prayed for by the Atomberg would have the effect of Luker
continuing to exploit Atomberg’s exclusive rights and the loss
caused to the Atomberg would be irreparable. Relying on Section
4(b) and 19(b) of the Designs Act, 2000, Mr. Tulzapurkar
submitted that the learned Single Judge was in error in holding
that the Atomberg’s design registration may be hit by the said
provisions. It is further submitted that a cursory look at the Luker
Electric’s fan compared with the suit fan indicates that the
impugned design is fraudulent and obvious imitation of
Atomberg’s registration design. Mr. Tulzapurkar further submitted
that the test of defence of functionality is wrongly applied by
learned Single Judge in the present case. Mr. Tulzapurkar
emphasized that the design of the impugned fan has the same
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distinctive shape, configuration and combination features of the
Atomberg’s registered design and that Luker failed to provide any
explanation about this similarity. It is submitted that irrelevant
factors such as packaging of boxes containing rival products are
taken into consideration by the learned Single Judge for arriving at
a conclusion that the Atomberg is not entitled for injunction
prayed for.
15. Even on the aspect of passing off, Mr. Tulzapurkar
submitted that the vast documentary evidence in support of
Atomberg’s case has not been taken into consideration and that the
learned Single Judge erred in applying the principles laid down in
Kemp & Company Vs. Prima Plastics Ltd.3 correctly in the
contextual facts of the present case. In the facts of the present
case much emphasis has been placed by learned Senior Advocate
on the observation of the learned Single Judge that Atomberg has
been unable to demonstrate ‘something more’ for claiming the
reliefs in respect of passing off. It is strenuously urged that the
learned Single Judge failed to apply the well settled principles
governing the consideration and grant of interim reliefs in its
correct perspective.
3 (1998) SCC OnLine Bom 437
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16. Shri Tulzapurkar relied upon the following decisions in
support of his submissions.
(i) M/s. Kemp & Company & another vs. M/s. Prima Plastics
Limited;
(ii) Torrent Pharmaceuticals Ltd vs Wockhardt Ltd;4
(iii) Torrent Pharmaceuticals Limited vs Wockhardt Ltd. &
Ors. ;5
(iv) Wockhardt Ltd. vs Torrent Pharmaceuticals Ltd;6
(v) S. Syed Mohideen vs. P. Sulochana Bai7;
(vi) Colgate Palmolive Company Ltd. vs. Patel & anr.8;
(vii) Whirlpool of India Ltd. vs. Videocon Industries Ltd.9;
(viii) Videocon Industries Limited vs. Whirlpool of India
Limited10;
(ix) Faber-Castell Aktiengesellschaft and Ors. vs. Cello Pens
Pvt. Ltd. and anr.11;
(x) Gorbatschow Wodka KG v. John Distilleries Ltd.12;
(xi) Josco Rubbers vs. Asian Rubber Industries & Ors.13;
(xii) Asian Rubber Industries & Ors. vs. Josco Rubbers & anr.
4 (2017) 6 AIR Bom R 306
5 2017 SCC OnLine Bom 9666
6 (2018) 18 Supreme Court Cases 346
7 (2016) 2 SCC 683
8 2005 SCC OnLine Del 1439
9 (2014) (60) PTC 155 (Bom)
10 (2012) 6 Bom CR 178
11 2016 (65) PTC 76
12 2011 SCC OnLine Bom 557
13 Order dated 23rd December 2011 in Notice of Motion No. 568 of 2012 in Suit (L) No. 2977 of
2011- Single Judge Bombay High Court
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14
;
(xiii) Faber-Castell Aktiengesellschaft vs. Pikpen Private
Limited 15 ;
(xiv) Selvel Industries and Ors. vs. Om Plast (India)16 ;
(xv) Philips Lighting Holding B.V. vs. Jai Prakash Agarwal
and Ors.17
17. Mr. Ravi Kadam, learned Senior Advocate for Luker
Electric argued in support of the findings of the learned Single
Judge. Mr. Kadam submitted that the suit has been instituted to
seek the reliefs qua alleged infringement of Atomberg’s registered
design for a ceiling fan as also for the tort of passing off. According
to Mr. Kadam, Atomberg’s design is ‘prior published’ and without
prejudice, the suit fan is merely a ‘trade variant’. On account of
prior publication and trade variant, there is ‘no novelty’ in the suit
fan and hence, it is his submission that learned Single Judge was
justified in dismissing the interim application. Reliance is then
placed on the relevant provisions of the Designs Act in support of
the Luker Electric’s case. It is further submitted that the Luker
Electric’s challenge to the validity of the suit fan’s design
14 Order dated 06th March 2012 in Appeal No. 62 of 2012-Division Bench of Bombay High Court
15 (2003) 27 PTC 538
16 (2016) 67 PTC 286
17 2022 SCC OnLine Del 1923
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registration is on account of suppression of the fact that the suit
design is hit by ‘prior publication’ and/or the suit fan is a ‘trade
variant’ and that Atomberg did not disclose in its plaint that the
suit fan had in fact been published prior to 08.09.2018 and in any
event, is at best, a variant of other ‘Renesa’ range of fans that were
existing in the market prior to 08/09/2018. Shri Kadam invited
our attention to the materials on record containing social media
posts, delivery challans and invoices to contend that the suit fan
has been sold prior to 08/09/2018 and/or fans that are similar to
the suit fan have been sold prior to 08/09/2018. Shri Kadam
relied upon the following decisions in support of his submissions.
(i) Bhaskar Laxman Jadhav & Ors. Vs. Karamveer Kakasaheb Wagh
Education Society & Ors.18;
(ii) Dalip Singh vs. State of Uttar Pradesh & Ors. 19;
(iii) Kamakshi Builders vs. Ambedkar Educational Society & Ors.20;
(iv) Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors.21;
(v) Commissioner of Income Tax, Madras & Anr. Vs. MR. P Firm
Muar 22;
(vi) A.C Jose vs. Sivan Pillai and Others 23;
18 (2013) 11 SCC 531
19 (2010) 2 SCC 114
20 (2007) 12 SCC 27
21 (1968) 3 SCR 862
22 (1965) 1 SCR 815 :AIR 1965 SC 1216 : (1965) 56 ITR 67
23 (1984) 2 SCC 656
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(vii) Faber Casetell Aktiengeselleschaft vs. M/s Pikpen Pvt. Ltd 24 ;
(viii) M/s Kemp & Company & Anr. vs. M/s Prima Plastics Ltd.25;
(ix) Torrent Pharmaceuticals Ltd. vs. Wockhardt Ltd 26;
(x) Laxmikant V. Patel vs. Chetanbhai Shah & Anr.27;
(xi) Cadila Health Care Limited vs. Cadila Pharmaceuticals Ltd.28;
(xii) Mohan Lal vs. Sona Paint & Hardware 29;
(xiii) Crocs Inc. USA vs. Aqualite India Limited & Ors.30;
(ivx) Carlsberg Breweries A.S. vs. Som Distilleries and Breweries
Ltd.31;
(xv) Crocs Inc USA vs. Bata India & Ors.32 ;
(xvi) Whirlpool of India Ltd. vs. Videocon Industries Ltd.33;
(xvii) Videocon Industries Limited vs. Whirlpool of India Ltd 34;
(xviii) Selvel Industries & Ors. vs Om Plast (India)35;
(xix) Jasco Rubbers vs. Asian Rubber Industries and others 36;
(xx) Shyam Sel and Power Limited & Anr. vs. Shyam Steel
Industries Limited 37 ;
24 2003 SCC OnLine Bom 461
25 1998 SCC OnLine Bom 437
26 2017 SCC OnLIne Bom 318
27 (2002) 3 SCC 65
28 (2001) 5 SCC 73
29 2013 SCC OnLine Del 1980
30 (2019) SCC OnLine Del 7409
31 (2018) SCC OnLine Del 12912
32 (2019) SCC OnLine Del 11956
33 MANU/MH/0639/2014
34 (2012) SCC OnLine Bom 1171
35 (2016) SCC OnLine Bom 6945
36 Decision of Bombay High Court in Suit (L) No. 2977 of 2011 dated 23/12/2011
37 (2023) 1 SCC 634
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(xxi) UTO Nederland B.V. & V/s. Tilak Nagar Industries Ltd.38;
(xxii) Ramakant Ambalal Choksi v Harish Ambalal Choksi 39;
18. We have heard learned Senior Advocates at length. Before
we proceed to deal with the rival contentions, it is important to
bear in mind that the law relating to injunction in India has its
origin in equity jurisprudence of common law. So far as the scope
of appeal against the order of injunction is concerned, the decision
of three Judge Bench of the Supreme Court in Wander Limited Vs.
Antox India Pvt. Ltd.40 is considered as locus classicus. The
Supreme Court, in paragraph 14 has dealt with the scope of appeal
against an order granting temporary injunction, which is extracted
below for the facility of reference:
“14. The appeals before the Division Bench were against the exercise
of discretion by the Single Judge. In such appeals, the Appellate Court
will not interfere with the exercise of discretion of the court of first
instance and substitute its own discretion except where the discretion
has been shown to have been exercised arbitrarily, or capriciously or
perversely or where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An appeal
against exercise of discretion is said to be an appeal on principle.
Appellate Court will not reassess the material and seek to reach a
conclusion different from the one reached by the court below if the one
reached by the court was reasonably possible on the material. The
appellate court would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it would have come to a38 Appeal No. 66 of 2012
39 (2024) SCC OnLine SC 3538
40 1990 (Supp) SCC 727Ingale/Kadam 19
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comapl-16459-23.odtcontrary conclusion. If the discretion has been exercised by the Trial
Court reasonably and in a judicial manner the fact that the appellate
court would have taken a different view may not justify interference
with the trial court’s exercise of discretion. After referring to these
principles Gajendragadkar, J. in Printers (Mysore) (P) Ltd. v. Pothan
Joseph [Printers (Mysore) (P) Ltd. v. Pothan Joseph, (1960) 3 SCR
713 :
‘ … These principles are well established, but as has been
observed by Viscount Simon in Charles Osention & Co. v.
Johnston [Charles Osenton & Co. v. Johnston, 1942 AC 130
(HL)], AC at p. 138 : ….. The law as to the reversal by a court of
appeal of an order made by a judge below in the exercise of his
discretion is well established, and any difficulty that arises is due
only to the application of well settled principles in an individual
case”.’
19. We may also refer to the decision of two Judge Bench in
Supreme Court in Ramakant Ambalal Choksi (supra) which dealt
with the appellate jurisdiction of the Court dealing with the appeal
against the order of injunction and approved the principles laid
down in Wander Ltd. (supra). In paragraphs 21, 26,30, 32, 35, 36,
37 it was held as under: –
21. The law in relation to the scope of an appeal against grant or non-
grant of interim injunction was laid down by this Court in Wander Ltd.
v. Antox India P. Ltd. reported in 1990 Supp SCC 727. Antox brought
an action of passing off against Wander with respect to the mark Cal-
De-Ce. The trial court declined Antox’s plea for an interim injunction,
however, on appeal the High Court reversed the findings of the trial
judge. This Court, upon due consideration of the matter, took notice of
two egregious errors said to have been committed by the High Court:
a. First, as regards the scope and nature of the appeals
before it and the limitations on the powers of the appellate court
to substitute its own discretion in an appeal preferred against a
discretionary order; and
b. Secondly, the weakness in ratiocination as to the quality
of Antox’s alleged user of the trademark on which the passing
off action is founded.
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26. What flows from a plain reading of the decisions in Evans
(supra) and Charles Osenton (supra) is that an appellate court, even
while deciding an appeal against a discretionary order granting an
interim injunction, has to:
a. Examine whether the discretion has been properly
exercised, i.e. examine whether the discretion exercised is not
arbitrary, capricious or contrary to the principles of law; and
b. In addition to the above, an appellate court may in a
given case have to adjudicate on facts even in such discretionary
orders.
30. This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries
Ltd. reported in (2023) 1 SCC 634 observed that the hierarchy of the
trial court and the appellate court exists so that the trial court exercises
its discretion upon the settled principles of law. An appellate court,
after the findings of the trial court are recorded, has an advantage of
appreciating the view taken by the trial judge and examining the
correctness or otherwise thereof within the limited area available. It
further observed that if the appellate court itself decides the matters
required to be decided by the trial court, there would be no necessity
to have the hierarchy of courts.
32. The appellate court in an appeal from an interlocutory order
granting or declining to grant interim injunction is only required to
adjudicate the validity of such order applying the well settled
principles governing the scope of jurisdiction of appellate court under
Order 43 fo the CPC which have been reiterated in various other
decisions of this Court. The appellate court should not assume
unlimited jurisdiction and should guide its powers within the contours
laid down in the Wander (supra) case.
35. Any order made in conscious violation of pleading and law is a
perverse order. In Moffett v. Gough reported in (1878) 1 LR 1r 331, the
Court observed that a perverse verdict may probably be defined as one
that is not only against the weight of evidence but is altogether against
the evidence. In Godfrey v. Godfrey in 106 NW 814, the Court defined
“perverse” as “turned the wrong way”; not right; distorted from the
right; turned away or deviating from what is right, proper, correct, etc.
36. The expression “perverse” has been defined by various dictionaries
in the following manner:
a. Oxford Advanced Learner’s Dictionary of Current English,
6th Ed.
Perverse – Showing deliberate determination to behave in a way
that most people think is wrong, unacceptable or unreasonable.
b. Longman Dictionary of Contemporary English – International
EditionIngale/Kadam 21
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comapl-16459-23.odtPerverse – Deliberately departing from what is normal and
reasonable.
c. The New Oxford Dictionary of English – 1998 Edition
Perverse – Law (of a verdict) against the weight of evidence or
the direction of the judge on a point of law.
d. New Webster’s Dictionary of the English Language (Deluxe
Encyclopedic Edition)
Perverse – Purposely deviating from accepted or expected
behavior or opinion; wicked or wayward; stubborn; cross or
petulant.
e. Stroud’s Judicial Dictionary of Words & Phrases, 4th Ed.
Perverse – A perverse verdict may probably be defined as one
that is not only against the weight of evidence but is altogether
against the evidence.
37. The wrong finding should stem out on a complete misreading of
evidence or it should be based only on conjectures and surmises. Safest
approach on perversity is the classic approach on the reasonable man’s
inference on the facts. To him, if the conclusion on the facts in
evidence made by the court below is possible, there is no perversity. If
not, the finding is perverse. Inadequacy of evidence or a different
reading of evidence is not perversity. (See: Damodar Lal v. Sohan Devi
and others reported in (2016) 3 SCC 78)”
20. This Court in UTO Nederland B. V. & Anr. Vs. Tilaknagar
Industries Ltd. by an order dated 28.04.2025 in Appeal No. 66 of
2012 had an occasion to consider in detail the principles regarding
scope of appeal against the order of granting or refusing
injunction.
21. We have carefully perused the order passed by the learned
Single Judge. As indicated earlier, Atomberg instituted a suit
seeking reliefs alleging infringement of Atomberg registered design
for the ceiling fan as also for the tort of passing off. The pleaded
case in the plaint essentially shows that the ‘Atomberg Renesa
Ingale/Kadam 22
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comapl-16459-23.odtCeiling Fan’ was formally known as ‘ Atomberg Gorilla Renesa
Celling Fan’. The suit fan was created in or around 2018 and
registration to the design thereof was granted on 08.09.2018.
Novelty of the suit fan’s has been described in para 10 of the
plaint. The case of Luker Electric is that Atomberg’s design is prior
published. Luker submitted that suit fan is merely a trade variant.
It is the case of Luker that on account of prior publication and
being a trade variant, there is no ‘novelty’ in the suit fan and hence
no injunction could be granted in Atomberg’s favour.
22. Luker contends that Atomberg did not disclose in its plaint
that the suit fan has, in fact, been published prior to 08.09.2018
and in any event, is at best, variant of other ‘Renesa’ range of fan
that existed in market prior to 08.09.2018. The materials such as
social media posts, delivery challans and invoices, according to
Luker proved beyond any reasonable doubt, that the suit fan has
been sold prior to 08.09.2018 and fan similar to the suit fan has
been sold prior to 08.09.2018. Luker relied upon the following
materials in support of its case. Social media post of the fan,
delivery challan dated 04.02.2018 of “Gorilla Renesa the Energy
Efficient Premium Ceiling fan”; invoice dated 31.03.2018 of
Ingale/Kadam 23
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comapl-16459-23.odt“Gorilla Energy Efficient Ceiling Fan; invoice dated 03.05.2018 and
Gorilla Energy Efficient Fan; invoice dated 31.05.2018 of Gorilla
Energy Efficient Ceiling fan; the plaintiff’s catalog of “Rensa range
of fan” which according to learned Senior Advocate for Luker
demonstrates beyond doubt that all Renesa fans are in fact variants
of each other. In our view, Atomberg was required to disclose the
aspect of prior publication in the plaint in respect to its own fan
which were prior and identical. Without disclosing the materials,
Atomberg has tried to contend that the suit fan was entirely
distinct and unique. We, therefore, find merit in the contention of
learned Senior Advocate Shri Kadam that the suit fan was at best a
trade variant of prior existing fan of Atomberg. Atomberg did not
produce any of the aforesaid documents; and/or did not disclose
that similar range of fans was published prior to 08.09.2018
and/or disclose how the suit fan, when viewed in comparison with
the earlier fans of Atomberg, was novel or unique.
23. The provisions of the Designs Act, more particularly
Sections 2(d), 4, 19 and 22 if perused would clearly reveal that if
the design is not new or original or if it has been disclosed to the
public and if it is not significantly distinguishable from
Ingale/Kadam 24
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comapl-16459-23.odtcombination of known designs, the registration itself cannot be
granted. The learned Single Judge, in our opinion, was not in
error in holding that the value of registration of a design stands
diluted, if material is available to indicate that it was published
prior to the date of its registration. In our opinion, there is
adequate material on record, at least prima facie to infer that it
was published prior to the date of its registration. We have already
referred to hereinbefore the materials which are demonstrative of
the fact that Atomberg’s design of the ceiling fan was in public
domain prior to the date of registration of design. In this context,
we may refer to the observation of the lerned Single Judge in para
25 which reads thus:
“25. This aspect becomes crucial for the purposes of the present
application, when the said documents are read in conjunction with
the pleading of the plaintiff in paragraph 8 of the plaint. It is
specifically pleaded in paragraph 8 of the plaint that the ceiling fan
of the plaintiff in question named Atomberg Renesa Ceiling Fan was
formerly known as Atomberg Gorilla Renesa Ceiling Fan. The
defendant is justified in contending that when such material is
appreciated, it leads to the inference that Atomberg Gorilla Renesa
Ceiling Fan and Atomberg Renesa Ceiling Fan are interchangeable.
Although the plaintiff has tried in its rejoinder affidavit to explain
the said aspect of the matter, inter alia, claiming that Atomberg and
Gorilla are house-marks of the plaintiff and that with time, theIngale/Kadam 25
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comapl-16459-23.odtplaintiff gave up the use of the house-mark Gorilla, at this stage, this
Court is of the opinion that such an explanation cannot come to the
aid of the plaintiff, while deciding the application for interim reliefs.
The stated stand taken in paragraph 8 of the plaint read with
Exhibits Q, R and S, as also the delivery challans and invoices placed
on record, do create an impression that the plaintiff’s design was
already in public domain and published prior to the date of
registration i.e. 8th September, 2018. A perusal of the designs of the
fans shown at Exhibits Q, R and S prima facie shows that they are
similar to the registered design of the plaintiff. This indicates that
the registration of plaintiff’s design may itself be hit by Sections
4(b) and 19(b) of the Designs Act. When this Court is exercising
discretion for grant of interim reliefs, the plaintiff not having
disclosed the documents at Exhibits Q, R and S alongwith the
delivery challans and invoices filed with the reply affidavit, is a
crucial aspect of the matter and it indicates that the plaintiff is not
entitled for grant of such interim reliefs.”
24. So far as the aspect of novelty in originality claimed by
Atomberg in the design of the suit fan is concerned, the learned
Single Judge found the ceiling fan depicted by Atomberg at
Exhibits Q, R and S which was in public domain is, prima facie,
found to be almost similar to the registered design. If on the basis
of the materials and even as the suit fan was produced before the
learned Single Judge, it is held that the difference, if at all, is slight
and trivial, we do not find any reason to warrant the conclusion
such that it calls for interference having regard to the scope of this
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appeal against the order refusing to grant an injunction.
25. Learned Single Judge referred to the table of comparison
between the rival designs, a perusal of which shows that on each
aspect of the matter, including the canopy, rod, packing of the
boxes containing remote associated with the rival products, prima
facie indicates that there are differences in the products.
26. In so far as the passing off is concerned, the learned Single
Judge in para 32 has observed thus:
“32. Applying the said position of law, at this stage, while examining
the aspect of prima facie case being made out for grant of interim
reliefs, this Court is of the opinion that even if the Court was to
proceed on the basis that the defendant has copied the design of the
plaintiff, something more than mere similarity would have to be
demonstrated by the plaintiff for successfully claiming interim
reliefs. The plaintiff would have to show that prima facie, the
defendant not only copied the design, but that the defendant was
making a false representation. In this context, at this stage, the table
of comparison of the rival products placed on behalf of the
defendant in the reply affidavit, assumes significance, for the reason
that apart from showing certain differences pertaining to the
canopy, rod, etc., the defendant has also shown how the boxes and
packaging of the rival products is different. Therefore, this Court
finds that the plaintiff has not been able to make out that
‘something more’, as required under law, to successfully claim
interim reliefs against the defendants, even on the aspect of passing
off.”
27. In view of the law enunciated by the Supreme Court in
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Wander Ltd (supra), it is evident that the appellate Court will not
interfere with exercise of discretion of Court of first instance and
substitute its own discretion except where the discretion has been
shown to have been exercised arbitrarily or capriciously or
perversely or where the Court had ignored the settled principles of
law regulating grant or refusal of interlocutory injunctions.
28. In the facts of the present case, it is not possible for us to
come to the conclusion that the discretion exercised by the learned
Single Judge is arbitrary, capricious or contrary to the principles of
law so as to warrant interference. The appeal is, accordingly,
dismissed. No order as to costs.
29. The interim application also stands disposed of.
(M.S.KARNIK, J.) (CHIEF JUSTICE) Ingale/Kadam 28 ::: Uploaded on - 25/07/2025 ::: Downloaded on - 26/07/2025 11:23:19 :::