Plastella v. Controller Of Patents And Designs — 1988 DIGILAW 205 (CAL)

JUDGMENT Prabir Kumar Majumdar 1. THIS is an appeal from an order dated 18th December, 1986 passed by the Joint Controller of Patents and Designs, on an application for cancellation of registration of the Registered Design No. 154062 dated 21st February, 1984 filed by the respondent No. 3 herein under Section 51A of the Designs Act, 1911. By the order under appeal the Joint Controller of Patents and Designs allowed the application of the respondent No. 3 and cancelled the registration of Design No. 154062 dated 31st February, 1984. 2. THE facts as would appear from the paper book are shortly as follow: In or about February, 1984 the appellant made an application for registration of the said Design No. 154062 and by an order dated 21st July, 1984. The said design was registered under the Designs Act, 1911 being Design No. 154062 and the Certificate of Registration dated 21st July, 1984 was duly issued. The said Design is in respect of a design of a Comb. In or about October, 1984 the respondent No. 3 Crystal Plastics and Metalizing Private Limited made an application under Section 51A of the Designs Act, 1911 (hereinafter referred to as the said Act) for the cancellation of the design of the appellant on the ground that the Design had been previously registered in India and that the Design had been published in India prior to the date of registration. The appellant filed a counter statement to the said application of the respondent cancellation of appellant's said design. 3. BY an order, under appeal, dated December 18, 1986 the respondent No. 2, the Joint Controller of Patents and Designs, allowed the respondent's said application for cancellation of the registration of the appellant's design. The said application by the respondent No. 3 in this appeal was made inter alia, on the grounds: (1) that the design had been previously registered in India, and (ii) that the design had been published in India prior to the date of registration. At the time of hearing of the respondent's application for cancellation of the registration of appellant's desing, the respondents No. 3 did not press the first ground i.e., design had been previously registered in India. Therefore, the respondent No.3 passed and argued the second ground i.e., design has been published in India prior to the date of registration. At the time of hearing of the respondent's application for cancellation of the registration of appellant's desing, the respondents No. 3 did not press the first ground i.e., design had been previously registered in India. Therefore, the respondent No.3 passed and argued the second ground i.e., design has been published in India prior to the date of registration. The respondent No. 3 made an application dated 12th September, 1983 numbered 153451 to the Controller for registration of design to be applied to a comb of the respondent No. 3 and according to the respondent the said design for which the respondent applied for registration was identical to the design of the comb registered in favour of the appellant under Design No. 154062 dated 21st February 1984. The respondent's case is that immediately after filing of the said application for registration by the respondent on 12th September, 1983, it started marketing the comb on a large scale and earned good reputation. The Joint Controller of Patents and Designs, however, found that no evidence had been filed by the respondent No. 3 in proof of the respondent's said contention as to the good reputation of the respondent's comb or the large market therefore. The second contention of the respondent No. 3 before the Joint Controller of Patents and Design was that the appellant's comb under Design No. 154062 was not new or original in that it is only distinguishable from well-known prior construction by modification of a kind, which must be regarded as ordinary trade variations. This ground was, however, not seriously pressed and no finding was made by the Joint Controller on this contention. 4. THE main contention of the respondent No. 3 before the Joint Controller was that the design had been published in India prior to the date of registration of appellant's design. THE respondent No. 3 submitted before the Joint Controller that when after filing the said application in Design Application No. 153451 on 12th September, 1983 for registration of design of their comb under the Designs Act, 1911, the respondent No. 3 prepared the artistic work of the label/carton containing the design of the said comb and applied for registration thereof on 26th November, 1983 under the Copyright Act and got the same duly registered under No. A-45812/84 dated 30th August, 1984 under the provision of the said copyright Act. THE respondent's application fro registration of its own design which was made on 12th September, 1983 under the Design Act was, however, dismissed and it appears from the record as found by the Joint Controller that not design was registered under the Design application No. 153451 filed by the respondent on 12th September, 1983. THE Joint Controller, therefore found that said application for registration of the respondent's Design under Application No. 153451 could not be taken as a relevant documentary evidence as prior publication and he held that merely because the Design application No. 153451 was made on 12th September, 1983 before the Controller for registration prior to the date of the registration of appellant's Design under Application No. 154062, it cannot be held that the Design was previously published. THE Joint Controller, felt that it was not necessary for him to consider whether the desing of the application No. 153451 was identical or not to the registered Design No. 154062 of the appellant. He, however, found that except certain insignificant variations the two designs of the comb. THE Design of the respondent No. 3 registered under the Copyright Act, being A-45822/84 dated 30th August, 1984, and the Design of appellant registered under the Designs Act being 154062 are identical. Regarding prior publication, the Joint Controller observed that the said application of the respondent being Application No. 153451 was not open to public as no Design was registered on the application and the right to the proprietorship of the Design did not accrue to the respondent under the Act. The Joint Controller, however, found that from the certified extract of the entries in the Register of Copyright, it can be seen that work classified as artistic work was registered under No. 45822/84 dated 30th August, 1984 in the office of the Registrar of Copyright in the name of respondent company M/s. Crystal Plastic and Metallizing Pvt. Ltd. on the application made on 26th November, 1983. The Joint Controller also held that the extract of the entries in the Register of Copyrights showed that the respondent had stated in their application that their work which is a label was first published in India in 1983. The Joint Controller also held that the extract of the entries in the Register of Copyrights showed that the respondent had stated in their application that their work which is a label was first published in India in 1983. The Joint Controller further observed that according to the provision of the Copyright Act, 1957, the Copyright in certain work are registered on the basis of the statements made by the applicant the respondent No. 3 in the prescribed application form and the particulars of such statements were entered in the Register of Copyrights under Section 44 of the Copyright Act and under the provision of Section 47, Copyright Act, the entries made in the register of Copyright after registration were open to inspection at all reasonable time and the entries made in the Register were prima facie evidenced of the said particulars under Section 48 of the Copyright Act, the Joint Controller, however, held that such evidence was not conclusive evidence but if any challenge as to the correctness of such particulars was made then the onus squarely lies on the party challenging the correctness of the entries to prove that the entries were incorrect. 5. ACCORDING to the Joint Controller, it was a pertinent issue before him to see whether or not the label annexed to the certified extract from the Register of Copyright was actually published or could be deemed to have been published in November, 1983, according to the provisions of the Copyright Act, 1957. The Joint Controller observed that the particulars in the Register of Copyrights are deemed to be prima facie evidence of such particulars under Section 48 of the Copyright Act, 1957 and the party challenging the correctness of such entries should prove that the entries were incorrect. The Joint Controller held that the appellant failed to discharged that onus. 6. IN the premises, the Joint Controller was inclined to believe that the publication of the respondent's artistic work i.e., label containing the shape and configuration of the comb was published by the respondent in November, 1983 prior to the date of registration of Design No. 154062 dated 21st February, 1984 in other words the Design No. 154062 was published prior to its registration. Accordingly, the Joint Controller allowed the respondent's application and cancelled the appellant's registration of Design No. 154062. It has been contended by Mr. Sudipto Sarkar appearing with Mr. Accordingly, the Joint Controller allowed the respondent's application and cancelled the appellant's registration of Design No. 154062. It has been contended by Mr. Sudipto Sarkar appearing with Mr. Sidhartha Mitra for the appellant that the finding that the Design had been published in India prior to the date of registration of the appellants' design, being Design No. 154062 dated 21st February, 1984, only relying of the particulars furnished by the respondent No.3 in their application for registration of their artistic label of the comb under to Copyright Act which was entered in the register of Copyrights upon registration of the respondent's said artistic work of the label dated 30th August, 1984 was entirely erroneous. Mr. Sarkar has argued that apart from such bare statement in the said application of the respondent No.3 for registration of the artistic label of the work containing the Design of the said comb which was filed before the Registrar of Copyrights for the purpose of registration of the said artistic label, not being corroborated or established by any cogent evidence, there was no other evidence as to the publication of the appellant's Design prior to its registration. 7. MR. Sarkar has pointed out that against column 9 in the application appearing at page 29 of the paper Book, it was stated by respondent No. 3 that the said description of work, namely, artistic work of the label containing the designs of the said comb was published in India in 1983. MR. Sarkar has contended that under Copyright Act, the registration takes effect from the date of registration and admittedly the said artistic work was registered on 30th August 1984. MR. Sarkar has also argued that under the Design Act, the registration takes effect from the date of application under the provisions of the Section 43 (6) of the Designs Act, 1911. MR. Sarkar has also assailed the finding of the Joint Controller that it was for the appellant to lead evidence to disprove such alleged particulars by contending that the respondent No. 3 has made an application for cancellation of the appellant's said Design on ht ground that the Design had been published prior to the registration. Therefore, according to MR. MR. Sarkar has also assailed the finding of the Joint Controller that it was for the appellant to lead evidence to disprove such alleged particulars by contending that the respondent No. 3 has made an application for cancellation of the appellant's said Design on ht ground that the Design had been published prior to the registration. Therefore, according to MR. Sarkar, it was for the respondent No. 3 to lead evidence as to the publication and should establish the case sought to be made by the respondent No. 3 that the Design had been published in India prior to the date of registration. 8. MR. Sarkar has also argued that assuming that particulars contained in the application for registration under the Copyright Act were correct, under Section 48 of the Copyright Act the entries made in the Register of Copyright are open to inspection after registration and when it is open to inspection then only the question of publication would arise as it would then be made known to the members of he public. As found by the controller, MR. Sarkar submits, that the respondents said artistic work of the label containing the Design of the said comb was registered under the Copyright Act, 1957 on 30th August, 1984. MR. Sarkar submits that it is not in dispute that the appellant's registration of the said Design No. 154062 was registered under the Design Act, 1911 on 21st July, 1984 and under the provision of the Designs Act, the date of registration would relate back to the date of application which was admittedly on February 21, 1984. Therefore, according to MR. Sarkar, it cannot be contended by any stretch of imagination that the Design as registered under the Copyright Act could have been published before the Registration of such desing under the Copyright Act and it would further appear that under Section 47 of the Copyright Act, the particulars contained in the Register would only be made available for inspection by the members of the public after registration of the copyright and admittedly in this case, such registration under the Copyright Act was made on 30th August, 1984. Mr. Sarkar has also argued that under Section 50A of the Copyright Act, 1957. The publication cannot take place prior to the registration and as has been pointed out by Mr. Mr. Sarkar has also argued that under Section 50A of the Copyright Act, 1957. The publication cannot take place prior to the registration and as has been pointed out by Mr. Sarkar, that in the present case such registration under the Copyright Act was made on 30th August, 1984. Therefore, assuming such particulars as Mr. Sarkar submits, that find place in the register of Copyright these would amount o publication only on the date of registration and not before, and in any event not on the date of application. Therefore according to Mr. Sarkar, it cannot be contended or held that the appellants' Design was published before registration. 9. MR. Sarkar has also submitted that in the order under appeal the Controller took into account a subsequent event, namely, the registration under Copyright Act and admittedly on the date of registration of Design under the Designs Act, the appellant had exclusive right in the Design. 10. MR. Sarkar has also referred to, in particular, Section 15 of the Copyright Act. Under Section 15 of the Copyright Act, 1957 the Copyright shall not subsist under the Copyright Act if any Design has already been registered under the Designs Act, 1911. It is also provided in Section 15 (2) of the Copyright Act, 1957 that copyright in any design's which is capable of being registered under the Designs Act, 1911 but which has not been so registered, shall cease as soon as any article to which the design has been applied is reproduced more than 50 times by an industrial process by the owner of the Copyright or, with his licence, by any other person. It is therefore the contention of MR. Sarkar that copyright shall not subsist under the Copyright Act in any Design which is registered under the Designs Act, 1911 or, if not registered, the Design has been reproduced more than fifty times by any industrial process. It has been submitted by MR. Sarkar that admittedly the Design has been registered under the Designs Act and any copyright in the desing shall cease to subsist under the copyright Act. It is the submission of MR. It has been submitted by MR. Sarkar that admittedly the Design has been registered under the Designs Act and any copyright in the desing shall cease to subsist under the copyright Act. It is the submission of MR. Sarkar that in such a situation any entries in the register of copyright will not have any bearing while considering the application for registration under the Designs Act on the question whether there has been any prior publication of the Design south to be registered. Mr. Sarkar has also referred to sections 44 to 49 in Chapter X of the Copyright Act, 1957. He submits that under Section 44 of the Copyright Act, 1957 there shall be entered in the Register of Copyright the names or title of works and the names and addresses of authors. Publishers and owners of the copyright and such other particulars as may be prescribed, under section 45 of the Copyright Act, 1957 the author or publisher or the owner or other person interested in the copyright may make an application in prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering particulars of the work in the Register of Copyrights. It is further provided under Section 45 of the Copyright Act that on receipt of an application in respect of any work, the registrar of Copyrights after holding necessary enquiry as he may deem fit may enter the particulars of the works in the Register of Copyrights. Under Section 47 of the Copyright Act, the register of Copyrights shall all reasonable time be open to inspection and any person shall be entitled to take copies of, or make extracts from such register or indexes on payment of such fee and subject to such conditions as may be prescribed and under Section 48 of the Copyright Act. The register of Copyrights shall be prima facie evidence of the particulars entered therein. It is, therefore, the submission of Mr. Sarkar that until the copyright is registered under the Copyright Act, the particulars as may be given in the application for copyright will not be entered into the Register of Copyrights and after the particulars are entered in the register of Copyrights, any person may have inspection thereof in the manner indicated in Section 47 of the Copyright Act, 1957. 11. MR. 11. MR. Sarkar has, however, submitted that there cannot be any publication of any Design under the Copyright Act, until the registration is granted in respect of the Design and the particulars whereof are entered into the Register of Copyrights. Unlike Designs Act, the registration does not date back to the date of application. He submits that in the present case the entries are made in the Register of Copyright on the basis of the application made by the respondent to the Registrar of Copyrights and such particulars are not open to inspection until after registration and there cannot be any publication of such particulars before 30th August 1984 when the Design was registered under Copyright Act. He further submits that in the present case the appellant's Design was registered under the Design Act on February 21, 1984 although the Registration was granted on 21st July 1984. He submits that under the designs Act the date of Registration dates back to the date of application. It is also submitted by MR. Sarkar that, in any event the appellant's Design has been registered under the Designs Act before publication of such Design, assuming the Design of the respondent No.3 has been registered under the Copyright Act on 30th August, 1984. 12. IT is finally the submission of Mr. Sarkar that on any point of view, it cannot be said that the Design had been published in India prior to the date of registration which is one of the conditions mentioned in Section 51A of the Designs Act. On the question of publication, however, Mr. Sarkar has referred to certain passages in Terrell on Patents 13th Edition Article 5.65 page 117 and also the decision reported in (1877) 6 Chancery Division 412 and (1876) 3 Chancery Division 531. Mr. Sarkar has also referred to a passage in Halsbury's Laws of England, 4th Edn. Volume 48 paragraph 381. 13. MR. S.N. Mukherjee the learned counsel for the respondent No. 3 submits that the statements furnished before the Controller of Copyright in the manner as prescribed in Section 45 of the Copyright Act, 1957 have some evidentiary value in terms of Section 48 of the Copyright Act, 1957. MR. Mukherjee has also submitted that on the basis of such particulars, a copy whereof is at page 29 of the paper book, the registration was granted. MR. Mukherjee has also submitted that on the basis of such particulars, a copy whereof is at page 29 of the paper book, the registration was granted. He has also submitted that under Section 48 of the Copyright Act, the Register of Copyright shall be prima facie evidence of the particulars entered therein according to MR. Mukherjee this raises a statutory presumption and unless it is rebutted by the appellant this statutory presumption prevails. He has also submitted that appellant was given sufficient opportunities to deal with this case of the respondent No. 3 that the publication was made in 1983 by reason of such particulars being entered in the Register of Copyright in or about November, 1983 when the respondent No. 3 made an application for registration of the Design under the Copyright Act. A copy of this application is at pages 25 to 26 of the paper book. MR. Mukherjee, however, fairly concedes that it is true that the respondent did not produce any documentary evidence in support of the respondent's contention within the meaning of Rule 48 of the Designs Rules, but the facts remain that the respondent No. 3 did furnish a statement as to publication which is a prima facie evidence within the meaning of Section 48 of the Copyright Act, 1957 and the particulars contained in the said application in a prescribed forms should be taken as correct unless rebutted. MR. Mukherjee has also drawn the attention of the Court to Section 46 of the Designs Act, 1911 and in Section 46 (3) it is provided that the Register of Design shall be the prima facie evidence. Therefore, according to MR. Mukherjee, similar provision as to be evidentiary value of the particulars contained in the application for registration is provided in the designs Act as well. 14. MR. P.K. Das leading MR. Mukherjee on behalf of the respondent No. 3 has taken over from MR. Mukherjee and he submits that in the present case the respondent No. 3 led evidence at least prima facie as to the publication by producing the certificate of registration alongwith the extract of the Register containing the said particulars and the appellant by challenging the correctness of such particulars should lead further evidence to disprove the contention of the respondent No. 3 as to publication of Design prior to registration. MR. MR. Das submits that in the present case no such evidence in rebuttal has been led by the appellant. Mr. Das on the question of publication has referred to an authority, Patent for invention by Blanco White, 4th Edition, Mr. Das has referred to Article 4-128 at page 129. Mr. Das has also referred to "Cross on Evidence", 6th Edition, paragraph 3 at page 51. Has referred to an observation contained in the said book that prima facie evidence "in its usual sense is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving such evidence. In absence of further evidence from the other side the prime facie proof becomes conclusive proof and party giving it, discharges his burden." Referring to such observation Mr. Das has submitted that so far as the respondent No.3 is concerned, it has led a prima facie evidence as to publication, namely, the particulars contained in the application for registration under the Copyright Act and which were entered in the Register of Copyright. He submits that it appears from the extract of Register against column 9 that the respondents Design which it is alleged was identical with the appellants' Design was published in India in 1983. He further submits that the appellant has not led any evidence to the contrary. Mr. Das has, however, submitted that if evidence is adduced by both sides then of course discharge of onus by any of the parties is immaterial. In this connection, he has referred to a Supreme Court decision reported in AIR 1959 S.C. 331. Mr. Das therefore, submits that initial evidence led by a party and not rebutted by the other side is conclusive evidence. 15. MR. Das has also referred to a decision of this Court reported in AIR 1972 Calcutta 339 to content that if the Design is found to have been published before the date of registration then other points contained in Section 51A of the Designs Act do not have much force. In this case reported in AIR 1972 Calcutta 339 it was contended that not only had the desing been published in India prior to the date of registration, but the Design was also not new or an original Design. In this case reported in AIR 1972 Calcutta 339 it was contended that not only had the desing been published in India prior to the date of registration, but the Design was also not new or an original Design. The Court observed in that case that the Controller found that the Design having been published before the date of registration the contention that it was a new Design loses its novelty. 16. MR. Das, therefore, submits that in the present case the respondent has successfully led evidence as to the publication of the Design prior to the date of registration by referring to the particulars contained in the application for registration of the Design under the Copyright Act and the Joint Controller of Patents and Designs had accepted such evidence. MR. Das has further submitted that it is not in dispute that the appellant failed to lead any evidence in rebuttal to such presumptive evidence. Therefore, according to MR. Das the Joint Controller of Patents and Designs has rightly made a canceling the registration of appellant's Design No. 154062. Mr. Sarkark in reply has submitted that even if there is any copyright registered under the Copyright Act that ceases to exist under Section 15 (1) of the Copyright Act when the Design was registered under the Designs Act. In the present case admittedly the Design was registered on 21st February 1987. Mr. Sarkar has also submitted that in any event the publication under the Copyright Act, 1957 was made on the date of the registration i.e. 30th August, 1984. Referring to the decision of this Court reported in A.I.R. 1972 Calcutta 239, Mr. Sarkar has submitted that in an appeal from order of the Joint Controller, the Court is only confined to (i) and (ii) 51A of the Designs Act i.e. Design has been previously date of Registration. In the case which has been reported in A.I.R. 1972 Calcutta 339 there was an application made before this Court for cancellation of the registration on the grounds mentioned in Section 51A of the Designs Act. There the Court was not only confined to (i) and (ii) of 51A (1) a but also the other ground whether the Design is not a new or original Design. The Court considered that case on the consideration of 51A (1)(a) (3) of the Act. 17. BOTH sides have made elaborate arguments. There the Court was not only confined to (i) and (ii) of 51A (1) a but also the other ground whether the Design is not a new or original Design. The Court considered that case on the consideration of 51A (1)(a) (3) of the Act. 17. BOTH sides have made elaborate arguments. It would appear that under the Design Act the registration dates back to the date of application for registration of Design under the Copyright Act, 1957 there is no such provision that the registration dates back to the date of the application for registration. As would appear from records, the registration of the said artistic work of the respondent No.3 was registered on 30th August, 1984. Under Section 45 of the Copyright Act, the author or publisher or any person interested in the Copyright in the work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyright for entering particulars of the work in the Register of Copyrights. On receipt of an application in respect of any work, the registrar of Copyrights may after holding such enquiry as he may deem fit, enter the particulars of the work in the Registrar of Copyrights. Under Section 48 of the Copyright Act, 1957 the Register of Copyrights shall be prima facie evidence of the particulars entered therein. Under Section 47 of the Copyright Act, the Register of Copyright kept under this Act shall at reasonable time to be open to inspection. 18. IT would, therefore, appear from the aforesaid provision that the Registrar of Copyrights may enter the particulars after holding necessary enquiry as to the registration. Therefore, particulars would be entered into the Register of Copyright after the Registrar of Copyrights makes an order for registration. So the particulars that would appear in the Register of Copyright would be entered only after the registration of the work under the Copyrights Act and when such registration is made then it will be open to inspection to the public. The public therefore, would not have any access to the particulars in the Register of Copyrights unless the work for which such particulars are furnished were entered in the register of Copyrights. The public therefore, would not have any access to the particulars in the Register of Copyrights unless the work for which such particulars are furnished were entered in the register of Copyrights. In the present case, it is not, however, clear when the registration was granted under the Copyright Act but from the extract the copy whereof is at page 29 of the paper book, it appears that the date is 30th August, 1984 and it may be assumed that the registration was made on 30th August 1984 as the Registration No. A-45822/84. Therefore, it cannot be registered in 1983 and the particulars so furnished are not open to the public until the registration of the work under the Registration No.A- 45822/84. Therefore, the desing, under the Copyright Act could not be published before 21st February 1984 when the appellant's desing was registered under the Design Act, 1911. As found by the Controller, the respondent No.3 made the application for registration under the Copyright Act on 26th November, 1983. IT may also be noted that to find whether the desing was published prior to the date of registration the relevant date of enquiry should be date of the application for registration as under Section 46 (6) of the Designs Act, date of registration dates back to the date of application. Even if it is accepted that there was a publication of the respondent's work under the Copyright Act prior to the registration of the appellant's Design under Design Act, 1911, under Section 15(1) of the Copyright Act, if any Design had been registered under the Design Act, the copyright shall not subsist under the Copyright Act. Therefore whether there has been any publication within the meaning of Copyright Act or not, it is of no consequences when the authority concerned is considering an application for cancellation of the registration of Design under Section 51A of the Designs Act, 1911. 19. Therefore whether there has been any publication within the meaning of Copyright Act or not, it is of no consequences when the authority concerned is considering an application for cancellation of the registration of Design under Section 51A of the Designs Act, 1911. 19. IT has been specifically found by the Joint Controller in the order under appeal that the artistic work was registered on 30th August 1984 and a indicated before, no member of the public would have any access to the particulars relating to the work registration under the Copyright Act as entered in the Register of Copyright before the registration of the Copyright under the said Copyright Act, 1957, in the present case, it could not be before 4t h August, 1984 and more so the registration number under the Copyright Act was A-45822/84. Therefore, to my mind, there was no evidence before the Joint Controller that the appellant's Design was published prior to the date of registration of the appellant's Design under the Designs Act. 20. I, therefore, do not agree that the publication of the respondent M/s. Crystal Plastics and Metallizing Pvt. Ltd's artistic work i.e. label containing the shape and configuration of the comb a was published by the said respondent in November, 1983 prior to the date of registration of the appellant's Design No. 154062 dated 21st February, 1984. It has also been contended by the appellant that when the respondent M/s. Crystal Plastics and Metallizing Pvt. Ltd. is asking for a cancellation of the appellant's Design on the ground that the Design had been published in India prior to the date of registration. It is for the said respondent M/s. Crystal Plastics and Metallizing Pvt. Ltd. to lead evidence as to the publication and such onus is not discharged until it leads proper evidence as to the publication. It has further been contended by the appellant that in the present case the respondent has only furnished a statement as to the publication but there was no evidence as to publication itself. It appears from the order under appeal that appear from that statement contained in the Register of Copyright there was no other evidence as to the publication from the side of the respondent M/s. Crystal Plastics and Metallizing Pvt. Ltd. 21. It appears from the order under appeal that appear from that statement contained in the Register of Copyright there was no other evidence as to the publication from the side of the respondent M/s. Crystal Plastics and Metallizing Pvt. Ltd. 21. IN any event, as I have indicated before if such evidence is taken to be an evidence as to the publication in 1983 as would appear from the said extract under the Copyright Act that could not be a publication before 30th August, 1984 as there could not be any access by the members of the public to the particularly contained in the Register of Copyrights before its registration. Apart from that there was no other evidence on behalf of the said respondent M/s. Crystal Plastic and Metallizing Pvt. Ltd. that the said Design was published at any time prior to the 21st February, 1984 either in 1983 or any time prior to the date of registration of the appellant's said Design under the Designs Act, 1911. 22. I, therefore, hold that the Joint Controller of Patent and Designs was not right in coming to the conclusion that the appellant's Design No. 154062 was published prior to its registration and accordingly such registration should be cancelled. For the reasons aforesaid. This appeal should succeed and the order under appeal dated 18th December, 1986 in set aside. There will be no order as to costs.