Harbanas Singh ( 1 ) THIS is a petition under Section 51-A of the Indian Patents and Designs Act for cancellation of design registered under No. 123522 dated 22nd of Saptirnber, 1984, Rajinder Kumar respondent trading as Jexona Industries got the design of a jar and a lid registered on 22nd of September, 1964, under the design number given above. This jar is used for marketting cold cream and vanishing cream. A similar jar and lid were being used by the petitioner Lakme Limited for marketting similar commodities. In July or August 1964, on coming to know of the respondent s marketting vanishing and cold creams in jars which were similar to those used by the petitioner and considering that they were colourable imitation not only in design but in the colours of the lid the jar as well as the lettering on the lid and the jar, the petitioner, Lakme Limited filed a suit in the court of the Additional District Judge, Delhi. It was stated on behalf of the defendent in that suit, and Respondent 1n this petition, that he had got the design registered. The present petition was consequently made to have the design cancelled mainly on the ground of its prior publication and lack of originality. The following issue was consequently settled: - "is the design of the respondent No. 123322, dated 22nd September, 1964, liable to cancellation on the ground of its prior publication or lack of originality as stated in paragraph 10 of the petition"? 2. The petitioner has led evidence mainly to indicate that long before the date of registration of the design by the respondent the petitioner Company had been putting in the market its cold and vanishing creams in the jars of this type and had been advertising for the same. It is not necessary for me in this case to decide the question whether the jar with the lettering etc. used by the Respondent 1s or is not a colourable imitation of that of the petitioner. The sole point to be determined in the present proceedings is whether the registration above mentioned is liable to cancellation on the ground of its prior publication. used by the Respondent 1s or is not a colourable imitation of that of the petitioner. The sole point to be determined in the present proceedings is whether the registration above mentioned is liable to cancellation on the ground of its prior publication. ( 2 ) GOING back to R/i, the registration certificate and the design attached therewith, there is a clear mention by the Controller of Patents and Designs that novelty resides in the shape of jar and cap . The petitioner has brought on records number of periodicals published prior to 22nd of September, 1964 the date of registration of the design in which advertisements of vanishing and cold creams of petitioner s manufacture were published. These have been proved by vaiious persons in charge of these magazines. These are Public Witness. I/i, Public Witness. 1/2, Public Witness. 1/3, Public Witness. 1/4, P. W. 1/5, Public Witness. 2/1, Public Witness 3/1 and Public Witness. 3/2. The illustrations of the jar and the lid as reproduced in these advertisements, and particularly in P. W. 1/1, Public Witness. 1/2, Public Witness. 3/1, and Public Witness. 3/2, are such as clearly correspond to the shape of the jar and the lid of the petitioner, which is produced in Court and which admittedly is similar and almost identical with the shape and design of the jar and the lid used by the respondent. For example, peculiarity of the lid of the registered design is that there are vertical lines on the lid. These lines are clearly indicated in the illustrations of the jar and the lid in the Exhibits mentioned above. There is nothing peculiar in the registered shape of the jar and the jar of the respondent is exactly similar in shape and colour as the jar of the petitioner as shown in the?e advertisements. From the above, it is a obvious that the shape of the jar as well as the lid was extensively published in the Indian market long before the date of the registration of the design in question. It was not disputed that the periodical? in which these advertisements appeared have a very wide circulation running into thousands of copies per month or per week as the case may be. It was not disputed that the periodical? in which these advertisements appeared have a very wide circulation running into thousands of copies per month or per week as the case may be. I am deliberately refraining from dealing with the markings either on the jar or on the lid because these markings were not matters due to which the design was registered and similarly the colour of the lid, and the colour of the jar are kept out of consideration. All that I have to decide is whether the peculiarities of the shape of the jar and the lid, for which purpose the design was registered as novel one, had been published prior to the date of registration. About this there can be no manner of doubt and I consequently accept this petition and direct the cancellation of the design in dispute. The petitioner will have costs from Respondent. Councel fee Rs. 100. 00