Rajesh Kalra v. Safeops. Surgical Care & Anr

RAJIV SAHAI ENDLAW, J. MAY 28, 2018 "bs" (corrected & released on 13th June, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 28th May, 2018 + CS(COMM) 55/2018 & IAs No.1193/2018 (u/O XXXIX R-1&2 CPC) & 1194/2018 (u/O XXVI R-9 CPC) RAJESH KALRA ..... Plaintiff Through: Mr. Sanjeev Singh and Mr. D.K. Yadav, Advs. Versus SAFEOPS. SURGICAL CARE & ANR ..... Defendants Through: Mr. Ankit Jain, Amicus Curie/Adv. with Mr. Divij Soni, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff, as per the amended plaint dated 27th January, 2018, has instituted this suit for permanent injunction restraining infringement of registered design and copyright inhering in its "Pre-Cut Eye Drape" and passing off and of ancillary reliefs of rendition of accounts, damages etc., pleading: (i) that the plaintiff is carrying on business of manufacturing, marketing, distribution and sale of medical and surgical, dental, veterinary apparatus and instruments and artificial limbs and eyes in the name and style of M/s Surgitech Innovation; (ii) that the plaintiff, in its effort to cater to emerging needs and/or high expectations of Ophthalmologists and patients, designed a unique shape and configuration of "Pre-Cut Eye Drape" with novel technology, unique shape, size and configuration; the plaintiff faced great difficulties in adjusting a pre-cut aperture on the polyurethane film with the sterile ophthalmic drape and adjusting drainage bag and lid holder and it is only after repeated efforts of the plaintiff that the product was successfully invented and designed; (iii) that the shape, size and configuration of the design of the "Pre- Cut Eye Drape" are novel, which makes the design of the aforesaid Eye Drape novel; (iv) that the plaintiff applied for and the design in the shape, size and configuration of "Pre-Cut Eye Drape" is registered under Design Registration No.291917 dated 22nd March, 2017 in class 24-04 and under Design Registration No.291915 dated 22nd March, 2017 in class 24-01; (v) that the said design of "Pre-Cut Eye Drape" bears unique and novel shape, size and configuration and has greatly appealed to the eyes of public and there is always a rush for the said product bearing the said registered design; (vi) that "Pre-Cut Eye Drape", owing to its quality, has successfully established its identity in the industry and corporate sector engaged in the research and development combined with the brand promotion activities and advertisements; the said registered design of the plaintiff has become distinctive, eye catching and associated with the plaintiff and plaintiff"s product; (vii) that the defendant No.1 SafeOps. Surgical Care, Surat, Gujarat is also engaged in trade and business of manufacturing and sale of medical, surgical, dental, veterinary apparatus and instruments and is also manufacturing and marketing Eye Drapes bearing the impugned design; (viii) that the defendant No.2 Parth Brahmbhatt trading as Nine Vision at Pune is acting as trader of defendant No.1 and marketing the products manufactured by the defendant No.1; (ix) that the defendants are commercially and in the course of trade using the shape, size and configuration of "Pre-Cut Eye Drape" which is a copy of the plaintiff"s registered design; the defendants have copied in entirety the said registered design of the plaintiff and are thus committing piracy of the registered design of the plaintiff; (x) that the defendants have also copied the entire scheme and business model of the plaintiff and illegally using the same shape and configuration of Pre-Cut Eye Drape with unique pattern and adjustment of pre-cut polyurethane film, drainage bag and lid holder; (xi) that the plaintiff, in July, 2017, on learning of the infringement by the defendants, got served a cease and desist notice dated 27th July, 2017 on the defendants; the defendant No.1 vide its reply dated 11th August, 2017 denied any infringement and the defendant No.2 did not reply to the notice; (xii) that though the plaintiff is based at Karnal, Haryana but this Court has t