Registered designs as source identifiers and availability of common law remedies during infringement proceedings—exposition of the law in India

Abstract

While dismissing a series of suits filed by CROCS INC USA inCrocs Inc USA v Aqualite India Ltd and Anr,1 a single-judge bench of the Delhi High Court comprising Justice Endlaw refused to impose costs on the plaintiff, reasoning: It cannot be said that the plaintiff was not bona fide agitating its rights on the ground of passing off. Law indeed on the subject was in a state of flux. All counsels have argued on the premise of Mohan Lal supra permitting an action for passing off in respect of a registered design. This indeed is the general impression held by nearly all. Clarity and certainty has emerged only from Carlsberg Breweries supra and from reading of reasons … for conclusions reached by majority in … Mohan Lal supra which are indeed widely worded. Thus, no costs. (Emphasis added). Most design attorneys, however, would feel rather constrained to agree with J Endlaw. To identify (and then justify) the finite contours of the ratio laid down by the five judges special bench of the Delhi High Court in Carlsberg Breweries A/S v Som Distilleries and Breweries Ltd,2 presents a miasma of a challenge.