14 February 2018

No registration when design a trade variation and available in public domain

Rejecting plaintiff’s claim of piracy of design, Delhi High Court has on 8-2-2018 cancelled a registered design. The Court in this regard noted that the design in respect of the footwear was available in public domain before, and is only a trade variation of a sandal.

It observed that plaintiff’s registered design does not have necessary newness or originality for the same to be called a creation or innovation or an Intellectual Property Right, which is a necessary requirement according to the Supreme Court decision in the case of Gopal Glass Works Ltd.

The High Court in Crocs Inc. USA v. Liberty Shoes Ltd. held that the features which were argued on behalf of the plaintiff as existing in its sandals/footwear, of mounds or humps or straps (or lack of them) or soles designs or perforations/open spaces etc., even when taken as a whole, or individually, do not result in innovation or creation of newness or originality.

Relying on an earlier decision of the Court, it was held that mere trade variations to existing product will not entitle a person to contend that there is newness and originality and that such designs cannot be given designation of an IPR.

The Court in addition to the actual legal costs also granted each of the defendants a sum of Rs. 200,000 subject to final decision towards costs incurred for these proceedings except the head of legal costs. 


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