Bombay High Court
Travel Blue Products India Private … vs Miniso Life Style Private Limited on 31 July, 2025
2025:BHC-OS:12294
IA (L) No. 28407 of 2024 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 28407 OF 2024
IN
COMMERCIAL IPR SUIT (L) NO. 28275 OF 2024
1. Travel Blue Products India Private Limited ]
a company incorporated under the ]
Companies Act, 1956 and having its ]
registered office at 102, Rama Gulab ]
Apartments, Subhash Road, Tejpal Scheme ]
Main Road, Vile Parle (East), Mumbai - 400 ]
057, Maharashtra, India ]
2. Travel Blue Limited ]
a company incorporated ]
under the laws of United Kingdom having ]
its registered office at Travel Blue Ltd Suite ]
13, Building 6 Croxley Park, Watford WD18 ]
8YH, United Kingdom ] ...Applicants
In the matter of :
1. Travel Blue Products India Private Limited
a company incorporated under the
Companies Act 1956 having its registered
office at 102, Rama Gulab Apartments,
Subhash Road, Tejpal Scheme Main Road,
Vile Parle (East), Mumbai - 400 057,
Maharashtra, India
2. Travel Blue Limited
a company incorporated
under the laws of United Kingdom having
its registered office at Travel Blue Ltd Suite
13, Building 6 Croxley Park, Watford WD18
8YH, United Kingdom ...Plaintiffs
Versus
1. Miniso Life Style Private Limited ]
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A company incorporated under the ]
provisions of Companies Act 2013, having its ]
registered address at 6th Floor, Unit No. 603- ]
604, Welldone Tech Park, Sohna Road Sector ]
48, Gurgaon, Gurugram, Haryana, India 122 ]
018 ]
Email : [email protected] ]
2. Miniso Hong Kong Limited ]
a company incorporated under the laws of ]
Hong Kong having its address at Unit D, 16/F, ]
One Capital Place, 18 Luard Road, Wan Chai, ]
Hong Kong ]
And also at 6th Floor, Unit No. 603-604, ]
Welldone Tech Park, Sohna Road ]
Sector 48, Gurgaon, Gurugram, ]
Haryana, India 122 018. ] ...Defendants
------------
Mr. Hiren Kamod (On VC) a/w Mr. Bhushan Shah, Mr. Abhishek Nair i/by
Mansukhlal Hiralal and Co. for Plaintiff
Dr. Abhinav Chandrachud a/w Mr. Darshan Patankar, Mr. Pranit Kulkarni, Mr.
Aditya Mehta, Mr. Agneya Gopinath and Mr. Dhruv Chhajed i/by Cyril
Amarchand Mangaldas for Defendant/Respondent.
Ms. Charushila Vaidya 2nd Assistant to Court Receiver present.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 24th June, 2025.
Pronounced on : 31st July, 2025.
Judgment :
1. This is an action for piracy of registered design and passing-off.
By order dated 24th September, 2024, this Court had granted ad-interim
reliefs in terms of prayer clauses (a) to (d). Subsequently, the
Defendants entered appearance and filed its Affidavit-in-reply dated
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23rd November, 2024. Though initially it was the Defendant’s
contention that the ad-interim order ought to be vacated and it was
not necessary for filing of a separate application under Order XXXIX,
Rule 4 of Code of Civil Procedure, 1908, it was agreed that the Interim
Application itself could be taken for final disposal. Accordingly the
Interim application was taken up for final hearing and is being
disposed of by this order.
2. The Plaintiffs are engaged in the business of marketing and sale
of travel accessory products through online and offline modes, which
are manufactured by Plaintiff No. 2. The case of the Plaintiffs is that in
the year 2015, Plaintiff No. 2 designed an innovative and distinctive
“Travel Blue Tranquility Neck Pillow” and obtained registration of the
tranquility pillow in India on 9th March, 2016 claiming reciprocity from
19th October, 2015. The certificate of registration was issued on 24 th
July, 2017 with a reciprocity date of 19th October, 2015 bearing number
281315. The Plaintiff No. 2 applied for extension of copyright in the
Plaintiffs’ registered design under Section 11 of the Designs Act, 2000
before Controller of Designs which has been extended for five years
i.e., till 19th October, 2030. The Plaintiff No. 2 had obtained
registrations in Europe, Republic of China, United States of America
and Australia apart from India. According to the Plaintiffs, since
October, 2015, Plaintiff No. 1 has done substantial business in respect
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of its tranquility pillow and the annual sales figure as of 2024-2025 is
Rs. 70,20,507.80 with the sales and promotional expenses at Rs.
25,20,934.77. It is stated that the tranquility pillow was widely
accepted on various social media platforms and exhibitions and
conferences. The Plaintiff No. 2 claims to be a proprietor/owner of
tranquility pillow design bearing design registration no. 281315. It is
submitted that appropriate steps were taken by the Plaintiffs in
protecting its registered design against the piracy by third parties.
3. In or around August, 2024, the Plaintiffs became aware of the
Defendant’s impugned travel neck pillow bearing the same distinctive
features as the Plaintiff’s design in retail stores in Mumbai and that the
Defendants had been marketing their neck pillow on various e-
commerce websites. It is submitted that the Defendants have not only
copied the Plaintiff’s identical design but have also copied the exact
colours in which the Plaintiff’s product was being sold, i.e. gray, blue,
purple and pink colors. The tabular comparison is placed as part of the
Plaint. In such circumstances, the suit came to be filed for piracy of the
registered design and passing-off.
4. By ad-interim order dated 24th September, 2024, this Court came
to a prima facie view that aesthetic and visual appeal of the rival
products is identical and that the impugned product is obvious
imitation and a replica and/or near replica of the said Tranquility
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Pillow/Plaintiff’s registered design. It further came to a prima facie
view that dishonesty of the Defendants is also evident as they are
selling their goods in the same colors as those of the Plaintiff’s goods
and by applying the test of piracy of design as laid down in Whirlpool
of India Ltd. vs. Videocon Industries Limited1 granted ad-interim relief.
5. The defence is that the Plaintiffs have knowingly made false
statement by concealing that the Plaintiff’s design relates specifically
to “Neck Pillow with Pocket” and it is inclusion of protruding and
extending pocket which added distinctive visual appeal. There existed
pillow designs with identical visual appeal prior to the Plaintiff’s design
and by reason of inclusion of protruding and extending pocket adding
distinctive visual appeal to the neck pillow which was not found in the
other neck pillows available at that time and based on which the
Plaintiffs have registered a design despite the existence of prior
design. It is stated that the Defendants are international product
retailers and are operating under MINISO brand and trade mark and
have established a global reputation for themselves through online
market as well as offline sources. It is submitted that the impugned
product bears no similarity to registered design and this design has
been developed by the Defendants considering the consumer’s
preferences, needs and satisfaction. There are material differences of
1 2014 SCC OnLine Bom 565.
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contours, length, placement and style of clasps etc between the
registered product and impugned product. The features of the
Plaintiff’s product such as foldable pillow, easy storage and
transportation, pouch, high density memory foam are functional
features. It is stated that the shape and configuration particularly,
contours to the overall design and visual appeal of the Defendant’s
impugned neck pillow when judged solely by eye is demonstrable
different from both the registered design as well as the Plaintiff’s
tranquility pillow.
6. It is submitted that in the absence of tenable case of the piracy
of registered design No. 281315 by the Defendant, there is no case of
passing-off made out by the Plaintiffs. It is stated that the Plaintiff’s
registered design is liable to be cancelled as it is not a new or original
design and as the Plaintiffs have admitted that the
“extending/protruding pocket” in the registered design is functional
feature, the Plaintiff cannot fall back of the visual appeal of the design
which is result of the pocket.
SUBMISSIONS :
7. Mr. Kamod, learned counsel appearing for Plaintiffs submits that
once the design is registered, there is presumption of validity under
Section 10(4) of Designs Act, 2000 which cannot be displaced by bare
allegations or generalised assertions of functionality. He submits that
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the Defendant has not pleaded the case or produced a single
document to establish that the Plaintiff’s design is functional. He
submits that if a design is a result of artistic or aesthetic consideration
even if it incidentally confers some functional advantage, it is neither
excluded from registration nor vulnerable to cancellation on that
ground alone. He points out paragraph 13, 14, 19 and 22 of the Plaint
to demonstrate that the tranquillity pillow has been designed by
Plaintiff No 2 with distinct aesthetic sensibility in mind. He submits
that the features such as easy storage, foldable, clasp etc are product
features and not visual elements and what is protected is the shape,
configuration and aesthetic composition. He submits that the
judgment in the case of Whirlpool of India Ltd. vs. Videocon Industries
Limited (supra) lays down the governing test that if the particular
function can be achieved through number of different forms then the
defence of functionality must fail.
8. He submits that the design has been registered not only in India
but also in foreign countries which brings a distinctiveness to the
Plaintiff’s brand. He submits that the Plaintiff has accurately and
prominently disclosed the correct design, location details, neck pillow
with pocket and has annexed the certificate of the registration which is
part of the record and that the averment of “neck pillow with pillow” is
only a typographical error. He would further submit that the
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contention in the Affidavit-in-reply that visual appeal is solely on
account of pocket is speculative and unsupported. He submits that the
pocket is merely a mechanical appendage with no prominent role in
overall configuration of tranquility pillow and the dominant feature of
the design lies in overall shape and configuration of the neck pillow.
9. He would submit that as regards the third party registered
designs cited as prior art is concerned, the same are visually and
configurationally distinct from the Plaintiff’s registered design in
terms of shape, contours, preparation and overall aesthetic appeal. He
submits that passing-off action is based on misrepresentation and
likelihood of confusion and is maintainable in the case of statutory
infringement. He submits that there is no justification for the
Defendant to adopt the identical shape and configuration and color of
Plaintiff’s tranquility pillow. He would point out the table of
comparison to contend that the Defendant’s design is obvious
imitation of Plaintiff’s design. In support, he relies upon the following
decisions:
Whirlpool of India Ltd. v. Videocon Industries Ltd.
(supra)Videocon Industries Ltd. v. Whirpool of India
Limited2Sirona Hygiene Private Limited v. Amazon Seller
2 2012 SCC OnLine Bom 1171.
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Services Private Limited3
Faber-Castell Aktiengesellschaft v. M/s. Pikpen
Private Limited4Parle Products Pvt. Ltd. v. DS Innovative Products
LLP5Frito-Lay North America Inc v. Balaji Wafers Pvt.
Ltd.6
Asian Rubber Industries v. Jasco Rubbers7
Faber-Castell Aktiengesellschaft v. Cello Pens Pvt.
Ltd.8
Selvel Industries v. Om Plast (India)9
10. Per contra, Dr. Chandrachud, learned counsel appearing for the
Defendants submits that shape/contours of the Plaintiff’s product are
pre-dominant functional rather than aesthetic in nature. He draws
attention of this Court to the pleadings in the Plaint in order to
demonstrate that the Plaintiff’s have themselves described their
product as ergonomical and has described the features which are
functional. He submits that the pleadings in the Plaint refers to the
functionality aspect of the registered design and what is necessary is
an aesthetic appeal for a design to be registered which is missing in the
3 2023 SCC OnLine Del 1559.
4 2003(4) Mh. L.J. 264.
5 2024 SCC OnLine Bom 3452.
6 2020 SCC OnLine Bom 2375.
7 Appeal No. 62 of 2012 in Suit No. 371 of 2012/2013(53) PTC495 (Bom).
8 2015 SCCOnLine Bom 8762.
9 2016 SCC OnLine Bom 6945.
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present case. He would further draw the attention of this Court to the
social media promotional material where the Plaintiffs have
emphasized the functional aspects of the Plaintiff’s product and not its
alleged aesthetic element. He points out the customer reviews to
contend that the reviews only speak of the functional aspects and not
aesthetic elements. He submits that the Plaintiff’s obtained
registration for a neck pillow with an inextricably intertwined pocket
which is absent in Defendant’s product.
11. He would submit that in the recent decision of Cryogas
Equipment Pvt. Limited vs. Inox India Limited10, the Hon’ble Supreme
Court has applied the dominant purpose test to decide whether a
design can be protected under this Act and when an article has both
functional and aesthetic elements, the predominant feature has to be
considered. He submits that the material on record shows that the
primary characteristic of the Plaintiff’s neck pillow is functional utility
and by applying the test laid down by Hon’ble Apex Court, the design is
not registrable. He submits that in the test laid down in decision of
Whirlpool of India Ltd. vs Videocon Industries Ltd. (supra), i.e. only
mode/option test is no longer good law.
12. He submits that from 2011 onwards several parties have
obtained design registration of neck pillow whose shape is similar to
10 2025 SCC OnLine SC 780.
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the Plaintiff’s neck pillow and draws attention of this Court to the
annexures in the Affidavit-in-reply to substantiate the said submission.
He submits that in case of design infringement, the Defendant’s
product must be compared with the Plaintiff’s product and in the
present case, as the pocket is absent in the Defendant’s product, no
case of design infringement is made out.
13. He would submit that there can be no claim of passing-off
because mere similarity between the goods is insufficient to constitute
passing-off and it has to be shown that the Defendant not only copied
the design but also have made a false representation to the public that
its goods are that of Plaintiff. He submits that the Defendant’s
packaging is different from the Plaintiff’s packaging and has been
marketed under the own trade mark and not the Plaintiff’s trade mark.
He submits that there can be no monopoly of colors and there is no
question of any confusion amongst the consumers. In support, he
relies upon the following decisions:
Cryogas Equipment Private Limited v. Inox India
Limited (supra)Whirpool of India Ltd. v. Videocon Industries Ltd.
(supra)M/s. Smithkline Beecham Plc. v. Hindustan Lever
Limited1111 2000 (52) DRJ 55.
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IA (L) No. 28407 of 2024 (final).docA. N. Sehgal v. Raje Ram Sheoran12
ITC Limited v. The Controller of Patents and
Designs13Super Smelters Limited v. SRMB Srijan Private
Limited14Indiana Gratings Private Limited v. Anand Udyog
Fabricators Private Limited15Atomberg Technologies Private Limited v. Luker
Electric Technologies Private Limited16Videocon Industries Limited v. Whirlpool of India
Ltd.17Empire Industries Limited v. Union of India18
State of Assam v. Barak Upatyaka D. U. Karmachari
Sanstha19Kewal Ashokbhai Vasoya v. Suarabhakti Goods Pvt.
Ltd.20
14. In rejoinder, Mr. Kamod would submit that reliance on case of
Cryogas Equipment Pvt. Ltd. (supra) is highly misplaced both in facts
and in law as in that case Apex Court was concerned with the case of
copyright infringement and associated literary works. He submits that
12 1992 Supp (1) SCC 304,
13 2017 SCC OnLine Cal 415.
14 2019 SCC OnLine Cal 4888.
15 2008 SCC OnLine Bom 1688.
16 (2023) 2 HCC (Bom) 426.
17 2012 SCC OnLine Bom 1171.
18 (1985) 3 SCC 314.
19 (2009) 5 SCC 694.
20 2022 SCC OnLine Bom 3335.
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the central question was interpretation of Section 15(2) of Copyright
Act, 1957 and the Hon’ble Apex Court has reiterated the principle that
once the artistic work is industrially applied beyond threshold, it ceases
to have the protection unless it is registered as design under the
Designs Act, 2000. He submits that the observations of the Hon’ble
Apex Court was confined to the non-registrable works under the
Copyright and Designs Act. He submits that the jurisprudence in India
has consistently held that functionality per se can cancel the
registration provided the design is utilitarian with no scope for visual
variation. He submits that where alternative design is feasible to
achieve the same utility and chosen design serve as aesthetic function
or offers consumers visual differentiation, it qualifies for protection
under the Act, which is the test which is laid down in Whirlpool of India
Ltd. (supra) and has been noted with approval in Cryogas Equipment
Pvt. Ltd (supra). He submits that the conclusion of the Hon’ble Apex
Court in Paragraph 66(d) of the Cryogas Equipment Pvt. Ltd. (supra)
makes it evident that so long as design of article is not functional, it
can possess aesthetic appeal and be protected under the Designs Act,
2000. He submits that even otherwise the dominant purpose of the
Plaintiff’s design is not functional but its unique and visual appeal
which sets it apart in the market. He draws the attention of this Court
to the pleadings in the Plaint to demonstrate that the product has
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been described as capricious, catchy and distinctive.
15. He submits that there is sufficient material on record to establish
reputation and goodwill. He points out to the sales figure which for
year 2023-24 was INR 3.95 crores and promotional expenses were INR
25 lakhs. He submits that upon comparison of the rival products, the
consumers are liable to be deceived and the test is not in identifying
individual similarities or dissimilarities.
REASONS AND ANALYSIS:
16. The issue arising for consideration is whether the Plaintiff is
entitled to commercial monopoly in respect of the design of the
tranquility neck pillow. As a prelude, the broad issue to be determined
is whether the Plaintiff’s design is non registrable under the Designs
Act, 2000, for the reason that (a) the Plaintiff’s design is dictated by
function and incapable of protection and, (b) there exists prior art
substantially similar to the Plaintiff’s design.
17. The Plaintiff’s product branded as “Travel Blue Tranquility Neck
Pillow” was granted registration on 24th July, 2017 with reciprocity
date of 19th October, 2015 bearing Design No 281315. The certificate
mentions that the design has been registered in Class 06-09 in respect
of the application of the design to “NECK PILLOW WITH POCKET.” The
novelty is stated to reside in the shape and configuration of the “NECK
PILLOW WITH POCKET”.
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18. The Plaintiff’s product is a neck pillow having a specific shape
and configuration with elevated sides and dipping curves in a unique
pattern. The Plaintiff has obtained registration of its design in India
and several foreign countries. The rival products were produced
physically before this Court and it was nigh impossible to differentiate
between the two products with both products being
identical/substantially similar in shape, configuration, features, fabric,
colour etc.
19. The pleaded case of the Defendant for cancellation of
registration is that the Plaintiff’s design is not new or original and that
the registration has been obtained only by reason of the protruding
pocket which added a distinctive visual appeal. It is not the pleaded
case of the Defendant that the shape and configuration of the
Plaintiff’s tranquility pillow is not registrable being functional. The
functionality averment is restricted to the features of the Plaintiff’s
product as set out in paragraph 17 of the Plaint such as being foldable,
easy storage etc. and cannot be protected. Whereas the substantive
arguments canvassed by Dr. Chandrachud were on the aspect of the
Plaintiff’s design being pre-dominantly functional and incapable of
registration as design. The arguments canvassed during the hearing is
not the Defendant’s pleaded case and on the contrary the pleadings in
the Affidavit in reply accepts the visual appeal of the Plaintiff’s design.
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20. In paragraph 6(d) of the Affidavit in reply, it is pleaded that the
Plaintiff has suppressed that the visual appeal associated with the
Defendant’s pillow is categorically different from the visual appeal of
the Plaintiff’s registered design and its tranquility pillow and that the
visual appeal of the Defendant’s pillow is a result of its overall shape
and configuration which being devoid of extending/protruding pocket
appears completely different from the Plaintiff’s design. In paragraph
39(b), it is pleaded that the shape and configuration, particularly the
contours and overall design and visual appeal of the Defendant’s neck
pillow when judged solely by the eye is demonstrably different from
both the registered design as well as the Plaintiff’s tranquility pillow.
In paragraph 50, it is pleaded that the design of the tranquility pillow
of Plaintiff is indeed strikingly different from the registered design no
281315 in so far as both designs hold a very distinctive visual appeal.
21. The gist of the pleadings reproduced above prima facie indicates
the acceptance by the Defendant of the fact that the Plaintiff’s design
possess visual appeal which can be judged solely by the eye and the
pleaded case is that the Defendant’s neck pillow bears a distinct visual
appeal from that of the Plaintiff’s design. In teeth of these pleadings,
prima facie it is not open for the Defendant to canvass the submission
that the Plaintiff’s design is non registrable on ground of functionality.
The pleading of functionality is restricted to the features as set out in
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paragraph 17 of the plaint and answered in paragraph 53 and 54. In
paragraph 54, it is pleaded that the features identified by the Plaintiff
in paragraph 17 are functional features.
22. Now what has been registered is appended at Page 75 of the
plaint as “Neck Pillow with Pocket” and the representation is that the
novelty resides in the shape and configuration of the “Neck Pillow with
Pocket” as illustrated. The novelty is not claimed in the protruding
pocket as is sought to be contended by Dr. Chandrachud but
specifically claimed in the shape and configuration of the neck pillow
which includes the pocket. The design registration specifically states
that no claim is made by virtue of this registration in respect of any
mechanical or other action of any mechanisam whatever or in respect
of any mode or principles of construction of the Article. The pocket is a
mechanical appendage and does not play any role in the overall visual
appeal of the Plaintiff’s product which is attributed to the shape and
configuration of the tranquility pillow. The description of the
tranquility pillow as “Neck pillow with pocket” does not undermine the
fact that the registration was granted to the shape and configuration
and not to the mechanical appendage.
23. The submission that the design was registered by reason of the
protruding pillow as otherwise the same would not have been
registered by reason of existence of prior art pillow has its foundation
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in the international registrations annexed at Exhibit “C” and “D” to the
Affidavit in reply. From the illustrations at Exhibit “C” prima facie it
cannot be deduced that the shape and configuration of the Plaintiff’s
neck pillow is visually and configurationally similar to the illustrations.
The Defendant has merely reproduced the illustrations without any
table of comparison to show that the Plaintiff’s neck pillow which has
distinct elevations and curves already existed in the prior art. The
illustrations would primarily indicate that there are various shapes and
configurations of neck pillows. As far as the products listed on e-
commerce websites at Exhibit “D”, the availability of similar products
for online sale is prima facie not indicative of the products being in
existence prior to the Plaintiff’s registration.
24. There is another aspect of the matter as far as prior art
registrations at Exhibit “C” is concerned, perusal of the said
registrations would indicate that the registrations are international
registrations. Under Section 19 of the Designs Act, 2000, there would
be cancellation of registration where:
(a) Design has been previously registered in India; or
(b)That it has been published in India or in any Country prior to
the date of registration.
25. It was necessary for the Defendants to specifically plead as to
whether the design has been registered in India or has been published
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in India for the purpose of application of Section 19(1) (a) or 19(1)(b).
The distinction between Section 19(1) (a) or 19(1) (b) is that if the
design is registered in India the same is sufficient to constitute ground
for cancellation of registration of the subsequent registered design. In
event the design is registered outside India a mere fact of international
registration is not sufficient to warrant cancellation. Under Section
19(1) (b) the prior art has to be published in India or in any other
country prior to the date of registration. The pleadings in the affidavit-
in-reply as well as the submissions which merely points out to the
international registrations without any material details is not sufficient
to make out prima facie case of cancellation either under Section 19(1)
(a) or 19(1)(b). The prior publication has to be necessarily be in some
brochure, book or Journal with the illustration clearly depicting the
design for the purpose of constituting a ground for cancellation. Prima
facie from perusal of the registrations it appears that there is only one
registration at page 212 which is national registration of 11th February,
2011, however the design is not visually or structurally similar to that
of the Plaintiff’s design.
26. Though the pleaded case of the Defendant accepts the presence
of visual appeal and there is no pleading of the shape and
configuration being functional, I have proceeded to consider the
submissions canvassed by the Defendant on the functionality test. As
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the argument is that the Plaintiff’s product is pre-dominantly
functional rather than aesthetic, it would be appropriate to have a look
at the relevant statutory provisions. Design is defined under Section
2(d) of Designs Act, 2000 as under:
“2(d) “design” means only the features of shape,
configuration, pattern, ornament or composition of lines
or colours applied to any article, whether in two
dimensional or three dimensional or in both forms, by
any industrial process or means, whether manual,
mechanical or chemical, separate or combined, which in
the finished article appeal to and are judged solely by the
eye; but does not include any mode or principle of
construction or anything which is in substance a mere
mechanical device, and does not include any trade mark
as defined in clause (v) of sub-section (1) of Section 2 of
Trade Mark and Merchandise Marks Act, 1958 (43 of
1958) or property mark as defined in section 479 of
Indian Penal Code (45 of 1860) or any artistic work as
defined in clause (c) of Section 2 of the Copyright Act,
1957 (14 of 1957)”
The essence of design as discerned from the definition is that design is
(a) features of shape, configuration, pattern, ornament or composition
of lines or colours applied to any article, (b) in two dimensional or three
dimensional or both forms (c) that enhances overall appearance of
article, while excluding mere mechanical device, trade mark as defined
in Section 2(1)(v) of Trade Mark and Merchandise Marks Act, 1958,
property mark as defined in Section 479 of IPC or artistic work as
defined in clause (c) of Section 2 of the Copyright Act, 1957.
27. Section 22 of Designs Act dealing with piracy in registered
design prohibits during existence of copyright in any design for any
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person for purpose of sale to apply to any article in any class of articles
in which the design is registered, the design or any fraudulent or
obvious imitation thereof without permitted use. Sub-Section (3) of
Section 22 affords the grounds for cancellation of design as defence to
a piracy allegation. Section 19 of Designs Act, 2000 governing the
cancellation of registration reads as under:
“19. Cancellation of registration -(1) Any person
interested may present a petition for the cancellation of
the registration of a design at any time after the
registration of the design, to the Controller on any of the
following grounds, namely-
(a) that the design has been previously registered – in
India; or
(b) that it has been published in India or in any other
country prior to the date of registration;or
(c) that the design is not a new or original design; or
(d) that the design is not registrable under this Act;or
(e) that it is not a design as defined under clause (d) of
Section 2(2) An appeal shall lie from any order of the Controller
under this section to the High Court, and the Controller
may at any time refer any such petition to the High Court,
and the High Court shall decide any petition so referred.”
28. The pivotal defence raised by the Defendant is that the decision
of the Hon’ble Apex Court in Cryogas Equipment Pvt Ltd vs Inox India
Ltd (supra) has resulted in a paradigm shift from the well settled “only
option test” i.e. whether the function can be achieved through number
of different forms to the “dominant purpose of functional utility test”.
29. Extensive jurisprudence has shaped the functionality test which
is required to be applied to determine whether the design is qualified
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for protection under the Designs Act. Learned Counsel for the parties
have relied upon several authorities of this Court as well as other High
Courts in support of their respective contentions and it would be
apposite to refer to the same at this juncture with the purpose to
discern the view adopted by the various High Courts.
30. The Delhi High Court in M/s Smithkline Beecham Plc vs. M/s.
Hindustan Lever Limited (supra), while considering the case of
infringement of design in respect of S-shaped toothbrush applied the
test of functionality to determine whether the S-shaped feature is
functional or aesthetic. The Delhi High Court held that although to
some extent the said feature could be said to be aesthetic but the
Court is to look into the dominant purpose for deciding as to whether
the features are functional or utilitarian or not. By applying the
dominant purpose test, it held that the dominant purpose of the
feature is functional and no passing off action could be available.
31. The Delhi High Court in Apollo Tyres vs Pioneer Trading
Corporation21 was considering a case of infringement of tread pattern
of tyres and held as under:
“87……Mr. Chandra has clarified-and I agree with his
submission, that no party can claim proprietary over the shape
of a tyre, since all tyres are round in the shape of a wheel,
which is a functional requirement. No party can claim
proprietary over the technique/ practice of providing treads in
a tyre, since treads are functional, i.e. they afford the
necessary grip between the tyre and the ground during
21 2017 SCC OnLine Del 9825.
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party can claim proprietary over the technique/practice of
having a plurality of ribs, separated by grooves, which create
the tread on the tyre. However, that does not mean that the
unique pattern of the tread adopted by a particular
manufacturer, which constitutes its unique design and shape,
would not be entitled to protection as a design – if it is
registered, and also as a trademark- if the tread pattern has
been exploited as a trademark i.e. a source identifier. What is
functional in a tyre are the “treads” and not the “tread
pattern”.
88. It is clear from the documents placed on record that each
of the manufacturers have adopted their unique tread
patterns. It is not the defendants case that the tread
pattern adopted by the plaintiff is the only tread pattern
which can serve the function of providing the necessary
grip between the tyre and the ground during movement of
the vehicle, so as to keep it substantially stable. This is not,
and cannot be, the defence of the defendant since
numerous unique trade patterns have been adopted by
different manufacturers of tyres the world over.
(emphasis supplied)
32. The Delhi High Court in the said decision noted with approval the
decision of Bombay High Court in Whirlpool of India Ltd. and held as
under:
“93. No doubt, the tread pattern adopted by the plaintiff in
respect of its tyre also serves the purpose which the treads on
any tyre serve. However, if the same function can be
achieved through numerous different forms of tread
patterns, then the defence of functionality must fail. It was
essential for the defendant to, at least, prima facie,
establish that the tread pattern of the plaintiff was the
only mode/ option, or one of the only few options, which
was possible to achieve the functional requirements of the
tyre. The position which emerges on a perusal of the
documents placed on record by the plaintiff is that there are
innumerable different and unique tread patterns in existence,
adopted by different manufacturers of tyres, which achieve
the same objective.
(emphasis supplied)
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33. The Calcutta High Court in ITC Limited vs. The Controller of
Patents and Designs held :
“55. Good design involves two fundamental elements; the
product must perform its function and it should be pleasant to
look at and appealing to the eyes. Predominance and pre-
eminence of the aesthetic elements over the functional
elements would satisfy the definition of “design” under the
Act.”
79. It is also well settled that where a design could particularly
perform a particular function but the designer has also added
some features of shape that appealed to the eye and are
additional to or supplementary to the function, the design
could be registered…”
34. In Super Smelters Limited vs. SRMB Srijan Private Limited
(supra), one of the issues before the Calcutta High Court was whether
the Respondent’s “X” ribbed mark could be recognised as trade mark in
common law action of passing off. In that context the Calcutta High
Court noted the provisions of Section 9(3)(b) of Trade Marks Act, 1999
to hold that shape of goods may be considered for registration of
Designs Act provided that the finished article appeals to the eye and is
not merely a mechanical device or functional device. The Calcutta High
Court differed from the decision of Delhi High Court in Apollo Tyres
vs. Pioneer Trading Corporation (supra) by referring to the provisions
of Section 9(3)(b) of Trade Marks Act which states that the marks shall
not be registered if it consists exclusively of shape of goods which is
necessary to obtain a technical result. It held that in applying Section
9(3)(b) of Trade Marks Act, it is not necessary to investigate whether
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shapes could achieve the given technical result to establish that the
shape in question necessarily achieves the given technical result.
35. The decision of Calcutta High Court turned on the interpretation
of Section 9(3)(b) of Trade Marks Act which provided for non-
registrability of trade mark if it consists exclusively of the shape of
goods which is necessary to obtain a technical result. It held that for
the shape of a good to be purely functional and therefore incapable of
protection as a trade mark, it is not sufficient that the shape have
certain aspects, which achieve a technical result, rather what is
required is that the shape, as a whole, performs a function only.
36. Now coming to the decision of Bombay High Court, in Whirlpool
of India Ltd vs Videocon Industries Ltd (supra), which was upheld by
Hon’ble Division Bench of this Court, the Learned Single Judge was
considering the issue of piracy of registered design in case of washing
machine and held thus on submission of defence of functionality:
“46. For a defense of functionality to succeed, it is not enough
to say that the form has some relevance to the function. If a
particular function can be achieved through a number of
different forms, then the defense of functionality must fail.
For the defence of functionality to succeed, it is essential for
Defendant to establish that the design applied for is the only
mode/option which was possible considering the functional
requirements of the products. Even otherwise, as submitted
by the Plaintiff assuming that the shape also performs a
certain function, that by itself is not determinative of the fact
that the design is functional if that is not the only shape in
which the function could be performed. In case of Cow (P.B)
and Co Ltd vs Cannon Rubber Manufacturers Ltd 1959 RPC
347 (cited at Page 75 of the majority judgment of Delhi High
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also functional. In such case the conundrum of functionality
is resolved by taking note of the fact that it would make no
impact on the articles functionality, if the function could be
performed by use of another shape as well.”
(emphasis supplied).
37. In Indiana Gratings Private Limited vs Anand Udyog Fabricators
Pvt Ltd (supra), the Co-ordinate Bench of this Court held that purely
functional feature is excluded from registration under the Designs Act,
2000 and that a design which has eye-appeal will be excluded from
registration only if every feature of it is one which is dictated solely by
function.
38. In Faber-Castell Aktiengesellschaft vs Cello Pens Pvt Ltd
(supra), the Co-ordinate Bench followed the decision of Whirlpool of
India Ltd vs Videcon Industries Ltd (supra) and considered a situation
where a particular feature or element had both form and function and
held that existence of function if combined with form does not
disentitle it from all protection together.
39. The proposition propounded by our Court in Whirpool of India
Ltd. vs Videocon Industries Ltd. (supra) that the fact that the shape
also performs a certain function does not make the shape
unregistrable if that is not the only shape in which the function could
be performed has been consistently followed. The Delhi High Court in
Apollo Tyres vs Pioneer Trading Corporation (supra), concurred with
the proposition laid down in Whirlpool of India Ltd. vs Videocon
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Industries Ltd. (supra). The Calcutta High Court in Super Smelters vs
SRMB Srijan Private Limited (supra) which turned on the expression
used in Section 9(3)(b) held that the provision only requires the
establishment that without the shape in question the given technical
result would not be achieved and not to ascertain whether other
shapes could achieve the given technical result.
40. The registration of design depends on the satisfaction that the
application of features of shape, configuration, pattern, ornament etc
to the finished article appeals to and can be judged solely by the eye.
The protection afforded by the Designs Act, 2000 is for the
ornamental/visual aspect of the product and not its functional feature.
There is tendency of a unique design to have an overlap between
functionality and aesthetics. The articles designed to perform intended
function may also have an aesthetic appeal and upon reading of the
definition of design, in my view, the definition does not require the
design to be purely aesthetic and devoid of functionality. If the design
is purely functional, there can be no protection. It is the mid-path i.e.
where the design is functional and aesthetic that needs to be resolved.
Apart from the functions of the features if it creates a visual effect for
the overall appearance of the finished article, the design cannot be
purely functional.
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41. The decision of Whirlpool of India Ltd. vs Videocon Industries
Ltd. (supra) has resolved the conundrum of functionality, which is
binding. It is not disputed by Dr. Chandrachud that the Plaintiff’s
product has an aesthetic value and what he submits that the “only
option test” has been replaced by dominant purpose test by the
decision of the Hon’ble Apex Court in Cryogas Equipment Private
Limited (supra).
42. In Cryogas Equipment Private Limited (supra), one of the issues
which arose for determination of the Hon’ble Apex Court was “What
are the parameters for determining whether a work or an article falls
within the limitation set out in Section 15(2) of the Copyright Act,
thereby classifying it as a “design” under Section 2(d) of the Designs
Act”. The Hon’ble Apex Court resolved the interplay between copyright
and design protection and essentially provided a framework for
determining whether an item is primarily an artistic work eligible for
copyright protection or a design eligible for protection under Design
Act in the context of Section 15(2) of Copyright Act, 1957.
43. The Hon’ble Apex Court formulated a two pronged approach (a)
whether the work in question is purely an artistic work or design
derived from the original artistic work which would entitle the work for
protection under Copyright Act in former case and under Design Act in
latter case and (b) if such work does not qualify for Copyright as being
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a purely artistic work then the test of functional utility will have to be
applied so as to determine the dominant purpose and then ascertain
whether it would qualify for design protection under the Design Act.
The Hon’ble Apex Court noted the decisions of various High Courts on
aspect of functional utility including the test laid down in Whirlpool of
India Ltd. vs Videocon Industries Ltd. (supra) and notably observed
that no decision of any other High Court or the Hon’ble Apex Court
expressing a discordant view has been cited and held that the test of
functional utility is integral to determining whether an article qualifies
for protection under the Designs Act. The Hon’ble Apex Court
approved the conclusions of the Gujarat High Court in paragraph 66 of
the decision. Clause (d) of paragraph 66 holds that for assessing
whether the protection under the Designs Act is available it must be
assessed whether the dominant aspect of the design is functional
meaning that the finished product must possess aesthetic appeal
rather than being purely functional.
44. The Hon’ble Apex Court has re-inforced and re-emphasised the
test of functionality which is to be applied in cases where the design
has both functional aspect and aesthetic appeal. The Hon’ble Apex
Court did not explicitly formulate the dominant purpose theory as
legal principle and has propounded the well settled functional utility
as the test within the broader legal framework to distinguish between
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copyright protection and design protection. There is no real conflict
between the only mode/option test and the dominant functionality
test. The test of functionality will necessarily involve an inquiry into the
question whether the finished product appeals to the eye rather than
being purely functional. When the Courts consider whether the
claimed design is dictated by function i.e. the design is pre-dominantly
functional, the question they ask is whether there are other design
that would produce the same overall functions and if the answer is in
the affirmative, then the design is not dictated by function. The
appearance of the design is dictated by function when there are
limited ways to achieve that function. Where the functional features
itself creates a different visual effect of the overall look of the
product, it is qualified for protection. For example if a kitchen knife has
a textured pattern on its handle for better grip and at the same time
has a visual appeal, the Court will have to consider if the textured
pattern is essential for function or if there are other equally functional
but visually different patterns available. If the same result of better
grip can be achieved by different patterns, then the textured pattern is
not functional and will receive protection.
45. Applying the well settled test of functionality, prima facie, the
Plaintiff’s design was registrable as design under Section 2(d) of
Designs Act, 2000. The shape and configuration of the tranquility
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pillow prima facie is not devoid of aesthetic appeal, which is also borne
out of the Defendant’s pleading. The illustrations produce by the
Defendant at Exhibit “C” would prima facie indicate that the same
functionality of lending support to the neck during travel may be
realized in variety of forms and the adoption of the Plaintiff’s design is
not the only way of performing the function and prima facie the
Plaintiff’s design passes the muster of aesthetic appeal. The mere fact
that the customer reviews speak of the functional aspects of the
tranquility pillow by itself is prima facie not sufficient to arrive at a
finding of the product being functional. As far as the pleadings in the
plaint describing the tranquility pillow, the pleadings blur the
description between functionality and aesthetic value, however, upon
holistic reading of the plaint, prima facie, there are sufficient pleadings
in the plaint to accept that the Plaintiff has described its product as
aesthetic in nature. The features of easy storage, foldable, memory
foam etc described in the plaint are product’s functional features and
not capable of design protection. The contention that the registered
design has a non detachable pocket whereas the actual tranquility
pillow has removable pocket and the Defendant’s product does not
have a pocket is prima facie not sufficient to hold that there is no
design infringement.
46. As far as the suppression of material facts is concerned, the
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submission is that at the time of seeking ex-parte ad-interim relief, the
Plaintiffs suppressed the fact that (a) they had obtained registration
not for the pillow per se but for the pillow with an inextricably
intertwined non removable pocket; (b) there exists prior art and the
pocket is an integral element of design and (c) the Plaintiffs had
highlighted the functional features of their pillow, the customer
review. It is not necessary for this Court to go into the issue of
suppression of fact as the application itself for taken up for final
disposal and all material facts are placed before this Court.
47. The infringement of registered design occurs when a person
applies or causes to be applied to any article in which the design is
registered the design or obvious imitation thereof. The table of
comparison at paragraph 41 of the plaint prima facie indicates that the
Defendant’s product is an obvious imitation of the Plaintiff’s registered
design. Prima facie case for infringement of registered design is made
out as there are no identifiable differences between the rival products.
The expression “imitation” used in Section 22 of Designs Act, 2000
does not mean to be an exact replica. The similarity or difference is to
be judged through the eye of purchaser [See Selvel Industries vs. Om
Plast (India) (supra)]. As the Plaintiff’s product is being marketed
since the year 2015, prima facie the product has achieved
distinctiveness and the balance of convenience is therefore in favour of
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the Plaintiff.
48. The defence to the action for passing off is absence of proof of
existence of goodwill and reputation, misrepresentation and damage
to the Plaintiff. As far as the goodwill and reputation is concerned, the
sales figure and promotional expenses of the Plaintiff for the year
2023-2024 was INR 3.95 Crores and INR 25 lakhs respectively. The
Plaintiff has obtained registration of the design in the year 2017 with
reciprocity from October, 2015 and the sales figures and promotional
expenses since the year 2016 are set out in the plaint to demonstrate
the goodwill and reputation. The Plaintiff has obtained international
registrations in the year 2015 which prima facie demonstrates the
Plaintiff’s global presence. The fact that action was required to be
taken against the infringers in the past prima facie demonstrates the
market penetration. The early entry of the Plaintiff’s registered design
in the market which is now sought to be diluted by the Defendant’s
infringed product is prima facie likely to cause injury to the Plaintiff’s
business, reputation and goodwill. For establishing passing off, the
Courts are required to ask whether the infringed product is likely to
cause confusion in the relevant consumer base. Upon prima facie
comparison of the rival products, the overall similarity between the
two products is likely to deceive the consumer in believing that the
goods of the Defendant are that of the Plaintiff. The minor variations
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as set out in the Affidavit in reply are not sufficient to distinguish the
goods of the Defendant from that of the Plaintiff. As the product itself
are kept for display and not marketed through packaging, the only
identifier would be the product itself, which shows a overall similarity
enough to cause confusion in the public. The imitation of the Plaintiff’s
registered design amounts to prima facie misrepresentation of
association with the Plaintiff. The Plaintiff’s product being in the
market since the year 2016 whereas the Defendant is late entrant in
the year 2022 shows the dishonest adoption of the similar design by
the Defendant. Given the Defendant’s own case that there is prior art
existing, the pleading that the Defendant has independently
developed the design of the product cannot be countenanced.
49. In Faber-Castell Aktiengessellschaft (supra), the Co-ordinate
Bench noted the decision of Gorbatschow Wodkd KG vs John
Distillerires Ltd22 which held that a conscious imitation by the
defendant of the various constituent elements that go in the
uniqueness of the plaintiff’s product must lead to a conclusion that
confusion and deception are both , respectively, inevitable and
intended.
50. In light of the above prima facie case for infringement of design
and passing off is made out entitling the Plaintiff to interim reliefs in
22 (2011) 4 MhLJ 842
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terms of prayer clauses (a), (b) and (c) which reads as under:
“a. that pending the hearing and final disposal of the suit,
the Defendants by themselves, their partners,
proprietors, stockiest, distributors, franchisees, servants,
agents and all person claiming under or through them be
restrained by an order of temporary injunction of this
Hon’ble Court from infringing the Applicants’ design
registered under No. 281315 by the use of the impugned
design of the Impugned Product shown at Exhibit – “L”
above and/or any other design which is an obvious or
fraudulent imitation of the Applicants’ design registered
under No. 281315 or in any other manner whatsoever;
b. that pending the hearing and final disposal of the suit,
that the Defendants by themselves, their proprietors,
partners, franchisees, servants and agents and all
persons claiming under or through them be restrained by
an order of temporary injunction of this Hon’ble Court
from from manufacturing, displaying, marketing, selling,
exporting, advertising, promoting, dealing in and/or form
using the impugned design and/or shape and/or دوget
up shown at EXHIBIT – “L” to the Plaint and/or any other
design and/or shape and/or get up which is identical with
and/or deceptively similar to the Applicants’ design
and/or shape and/or get up shown at Exhibit “B” to the
Plaint, in respect of pillows, travel accessories or like
goods so as to pass off or enable others to pass off the
Defendant’s Impugned Product and / or cognate, allied
complimentary goods as and for the Applicant’s well-
known pillows or in any other manner whatsoever;
c. that pending the hearing and final disposal of the suit,
the Defendants, by themselves, their directors,
proprietors, partners, servants, franchisees, agents,
dealers, distributors and/or otherwise howsoever, be
directed to remove and/or delete all online listings of the
Impugned on any e- commerce platform including the
websites hosted on
https://minisopaschimvihar.catalog.to; and / or any other
e-commerce / social media platform where the Impugned
Product is made available.”
[Sharmila U. Deshmukh, J.]
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