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2006 DIGILAW 79 (DEL)

MICROFIBRES, INC v. GIRDHAR AND CO

2006-01-13

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE plaintiff s grievance of violation of its copyright in the artistic works applied to upholstery fabrics and the allegation of an attempt to pass off the goods of the defendants as that of the plaintiff has given rise to the present litigation. ( 2 ) THE plaintiff is a company incorporated under the laws of the USA and is stated to be engaged worldwide in the business relating to manufacturing, marketing, selling and exporting of upholstery fabrics directly or through its subsidiaries and affiliates. The brand name of the plaintiff is stated to be microfibres. The business of the plaintiff is stated to have commenced in the year 1926 and the plaint states that on the upholstery fabrics are printed, unique and original artistic works which are conceptualized and drawn/printed by either its employees or other persons who have assigned the copyright in the works to the plaintiff. More than 1000 people are stated to be employed by the plaintiff and a global annual turnover is stated to be more than $ 200 million. The plaintiff s product under the brand name Microfibres is stated to be sold in more than hundred countries including India and has wide presence in the manufacture and sale of synthetic nylon flox fabric and velvet upholstery fabric. ( 3 ) THE plaintiff claims to have extensive international reputation with manufacturing bases and operations in several countries of the world and there are more than 250 brands of microfibres which are apparently sold in India. The plaintiff claims to have obtained registration of copyright of most of its original artistic works in the drawings applied by it on upholstery fabric and the details of such registration are set out in para 7 of the plaint. However during the course of arguments, the plaintiff concentrated the claim in respect of some of these artistic works in respect of which it was alleged that the defendants had violated the copyright. The details of the same are as under: ( 51 ) THE plea of the plaintiff is also sought to be negated on the issue of definition of a design under Section 2 (d) of the Designs Act, 2000 whereby an artistic work as defined in clause (c) of Section 2 of the Copyright Act has been specifically excluded. The details of the same are as under: ( 51 ) THE plea of the plaintiff is also sought to be negated on the issue of definition of a design under Section 2 (d) of the Designs Act, 2000 whereby an artistic work as defined in clause (c) of Section 2 of the Copyright Act has been specifically excluded. The submission was, thus, advanced that this would have the effect of rendering the law of designs redundant for the simple reason that each design registered thereunder would be able to trace its origin to a diagram, chart, drawing, etc. and, thus, cease to be governed by the Designs act. The legislative intent could not have been this because the law of designs is based on the same principle as applicable to other monopolies and to fuel industrial innovativeness by granting limited time-limit to the monopolies and allow others to make use of them after they have passed into the public domain. Thus, the plea of the plaintiff, if accepted, would be anti-competitive and would throttle and stagnate the industry. Learned counsel referred to judgment of the Privy Council in Interlego A. G. v. Tyco Industries Inc. , (1988) R. P. C. 343 wherein it has been observed as under:"the definition of design in section 1 (3) of the Act of 1949 is hardly a model of Parliamentary draughtsmanship and this is by no means the first case in which its meaning and application have been called in question. In approaching he question of construction there has to be borne in mind that the purpose of the Act, as appears both from its terms and its legislative history, is to protect novel designs devised to be applied to (or, in other words, to govern the shape and construction of ) particular articles to be manufactured and marketed commercially. It is not to protect principles of operation or inventions which, if protected at all, ought to be made the subject-matter of a patent. Nor is it to prevent the copying of the direct product of original artistic effort in producing a drawing. Indeed the whole purpose of a design is that it shall not stand on its own as an artistic work but shall be copied by embodiment in a commercially produced artefact. Nor is it to prevent the copying of the direct product of original artistic effort in producing a drawing. Indeed the whole purpose of a design is that it shall not stand on its own as an artistic work but shall be copied by embodiment in a commercially produced artefact. Thus the primary concern is what the finished article is to look like and not with what it does and the monopoly provided for the proprietor is effected by according not, as in the case of ordinary copyright, a right to prevent direct reproduction of the image registered as the design but the right, over a much more limited period, to prevent the manufacture and sale of articles of a design not substantially different from the registered design. The emphasis therefore is upon the visual image conveyed by the manufactured article. " ( 52 ) A reference was also made to the judgment in Premier Hangers CC v. Polyoak (PTY) Ltd. , 1997 (1) SA 416 (Appellate Division ). Both the parties were manufacturers and suppliers of hangers to the clothing industry and were competitors. The litigation arose from a claim by Polyoak that Premier was passing off hangers manufactured by it as being those of Polyoak. Infringement of certain designs registered in terms of the Designs Act were also pleaded. It was observed as under:"the evidence of Louw shows that trends, fashions, and the hangers of other manufacturers, are routine sources of inspiration in the field. A number of Polyoak s designs were based on what Louw had seen overseas or knew to be designs being used overseas. Louw referred to the imitation of a Marks and spencer hanger as an example. The Uni range itself was produced with a particular section (described by Louw as the C section) copied from an overseas hanger. It was also said that hanger design is influenced by the need to adapt a hanger so as to display dresses with, for example, broad straps, or to necessitate further modification when narrow straps are in favour. Another example given by him was that a particular material such as silk may become fashionable. This would require rounded edges to the hangers as sharp edges would be unsuitable for such use. Another example given by him was that a particular material such as silk may become fashionable. This would require rounded edges to the hangers as sharp edges would be unsuitable for such use. Another feature of the industry testified to by Louw was that changes were made to hangers incrementally and largely in accordance with customer suggestions or demands. So, too, sizes of hangers are determined solely by the standard measurements of dressmakers, and label plates are added, altered or removed in accordance with the customers wishes. I say this not to denigrate Polyoak s endeavours but to illustrate that in the general sense of justice of the community (quite apart from the question of design registration) copying in this field would not be regarded as improper. In short, copying is very much the order of the day while individual innovations are rare. " ( 53 ) THE defendants contended that the legislative intent behind the repealed designs Act, 1911 and coming into force of the new Designs Act, 2000 remained the same and the exclusion of artistic work in the definition in the new designs Act, 2000 is only clarificatory and was intended to exclude only artistic work pure and simple such as paintings, sculptures and works of art. ( 54 ) TO substantiate the aforesaid plea, a reference was made to the judgment of learned Single Judge of this Court in I. A. Nos. 6597 and 6944 of 1991 in Suit no. 1481 of 1991 titled m/s. S. S. Sarna Inc. and Anr. v. M/s. Talwar and khullar Pvt. Ltd. and Ors. decided on 08. 08. 1991. The subject matter of dispute was the allegation of copying by the defendants of the original artistic works owned by the plaintiff in the form of artistic metal sculptors such as fire boards, welcome wreaths, decorative hooks, wall hangings / small fire boards and planters, etc. The plaintiff was a company incorporated under the laws of United States of America (for short, usa ). Learned Single Judge found that it was really not in dispute that the basic idea of such products produced by the defendants appeared to have emanated from the plaintiff. The plaintiff was a company incorporated under the laws of United States of America (for short, usa ). Learned Single Judge found that it was really not in dispute that the basic idea of such products produced by the defendants appeared to have emanated from the plaintiff. It was observed as under:"copyright Act in general protects the artistic work, but the idea behind excluding certain designs from the protection under the Copyright Act, although otherwise the same design might have been so entitled to protection, appears to be to avoid any hindrance being caused to the manufacture and sale of industrial articles which in the absence of a provision similar to Section 15 could not be achieved. The intention of the Legislature appears to be very clear that wherever any artistic work has to be in a commercial exploitation by the owner of the copyright the same should be excluded from the protection under the Copyright Act and should be provided protection under the Designs Act, 1911 only provided the said design is registered under the Designs Act. The reference to the definition of term design under the Designs Act is wide enough, in my opinion, to cover the artistic work of the nature similar to the ones that we are concerned in the present suit. Plaintiffs have further submitted that the term design is not defined under the Copyright Act. In my opinion, when a particular term is used in reference to an Act and that term design has been defined under that Act, it can be safely presumed that the legislature implied that it is the definition of the term under that particular act (The Designs Act 1911) which can be looked into to decide the present controversy. " ( 55 ) LEARNED counsel for the defendants referred to the judgment of another learned Single Judge of this Court in Samsonite Corporation and Anr. v. Vijay sales and Ors. , (2000) F. S. R. July (c) Sweet and Maxwell 463. The dispute related to a range of suitcases known as System 4 range and the plaintiff claimed that the defendants suitcases infringe the copyrights relating to the said range and that the defendants were passing off suitcases for those of the plaintiff. The dispute was similar whether the plaintiff s drawings were artistic work. The dispute related to a range of suitcases known as System 4 range and the plaintiff claimed that the defendants suitcases infringe the copyrights relating to the said range and that the defendants were passing off suitcases for those of the plaintiff. The dispute was similar whether the plaintiff s drawings were artistic work. If they were designs and had not been registered under the designs Act, they were not subject to copyright protection. It was observed as under:"60. The main thrust of the argument of learned senior counsel of the plaintiffs was that the suitcases manufactured by the plaintiffs would easily attract any person because it has got a powerful and attractive shape which would immediately attract the eye. Learned senior counsel submitted that people travelling by air, rail and other modes of transport would look at the shape of the box and then would make enquiries as to who had manufactured it and that they would like to buy one. Therefore, the whole purpose of the manufacture was to attract the eyes of customers. Therefore, it would follow from the argument on behalf of the plaintiffs that it is clearly a design coming within the meaning of the definition of design, under the Designs Act, 1911, and coming within the meaning of Section 15 of the Copyright Act, 1957. Consequently, the plaintiffs cannot claim any copyright as the same had not been registered. The fact that it is being manufactured industrially is not in dispute. Prima facie, i accept the submission on behalf of learned counsel for the defendants that inasmuch as the plaintiffs had not registered the designs the plaintiffs cannot claim any protection under the Copyright Act, 1957 with reference to the drawings. " ( 56 ) LEARNED counsel for the defendants also pointed out the documents filed on record to show that the textile fabrics had been registered both under the designs Act, 1911 and the Designs Act, 2000. ( 57 ) IN order to appreciate the object of introduction of the new Designs Act of 2000, various proceedings were referred to by learned counsel for the defendants. ( 57 ) IN order to appreciate the object of introduction of the new Designs Act of 2000, various proceedings were referred to by learned counsel for the defendants. The Statement of Objects and Reasons of The Designs Bill, 1999 provided that the intent was to ensure that the law does not unnecessarily extend protection beyond what is necessary to create the required incentive for design activity while removing impediments to the very use of available designs. The definition of design has been amplified to incorporate therein the composition of line and colours so as to avoid overlapping with the Copyright act regarding definition of design in respect of artistic work . The proceedings from the Parliamentary Debate on the Bill were also referred to to show that the concerned Minister of State had observed that the Act was being amended to provide help and protecting the rights of designers . The Handbook issued by the Design Office for information to the public was referred to which inter alia states as under: what can be registered as a Design to qualify for registration as a design, an article should relate to the ornamental or new shape, surface pattern, lines or colour with aesthetic look (Designs of industrial plans, layouts or installation are not registrable ). It should be applicable to any product reproducible by industrial means (Paintings / Sculptures and works of art excluded ). ( 58 ) LEARNED counsel further referred to the judgment of learned Single Judge of this Court in AGA Medical Corporation v. Faisal Kapadi and Anr. , 2003 (26) PTC 349 (Del) where it was observed as under:"13. This Court on a consideration of the matter and more particularly the meaning of copyright and the definition of design in the Designs Act is, prima facie, of the view that the plaintiff does not have a subsisting copyright under the Copyright Act, firstly; because it is capable of being registered under the Designs Act though it has not been so registered and secondly; as per the plaintiff s own showing, the devices to which the drawings have been applied, has been reproduced more than 50 times by an industrial process by the plaintiff. " ( 59 ) THE decision on this particular issue has a material bearing on even the subsequent issues framed in the suit and, thus, had to be examined in-depth. " ( 59 ) THE decision on this particular issue has a material bearing on even the subsequent issues framed in the suit and, thus, had to be examined in-depth. The crucial issue would, in my considered view, which has been rightly put forth in its perspective by the learned counsel for the parties, is whether the work in question can be said to be an artistic work within the definition of section 2 (c) of the Copyright Act or was it a design within the meaning of the designs Act, 2000. ( 60 ) THE work in question is no doubt the arrangement of motifs, flowers, leaves and shapes which have been arranged in a particular manner. There is, thus, element of labour and skill applied to have a particular pattern as observed in walter v. Lane s case (supra ). There is also little doubt that the defendants have copied the same. This would be apparent from the comparison of the designs of the fabrics of the plaintiff and the defendants. To illustrate this aspect, some of the original and alleged offending products are being reproduced herein- below: plaintiff s Product - leipzig defendants Infringing Product plaintiff s Product - prestige defendants Infringing Product plaintiff s Product - hallmark defendants Infringing Product plaintiff s Product - miessen defendants Infringing Product plaintiff s Product - june defendants Infringing Product ( 61 ) THE defendants have attempted to throw doubts on the certificates of registration issued by the Copyright Office at USA. However, once the parties have agreed that the documents can be read in evidence, the documents filed do give sufficient proof of such registration in USA. There have been also cases of assignment. It has been set out in the plant that there are large number of staff of the plaintiff doing this very work, while in respect of others, assignment has taken place. However, in respect of some of the works, the documents are stated not to be available. It has been pleaded that, in any case, the defendants are copying. ( 62 ) IN order for the work of the plaintiff to qualify as an artistic work , it must fall within the definition of sub-section (c) of Section 2 of the Copyright act. It has been pleaded that, in any case, the defendants are copying. ( 62 ) IN order for the work of the plaintiff to qualify as an artistic work , it must fall within the definition of sub-section (c) of Section 2 of the Copyright act. A reading of the said provision would show that attempt of the plaintiff can only be to bring it within the concept of painting . The comparison with the painting of M. F. Hussain would be otiose as the work in question, in the present case, is not a piece of art by itself in the form of a painting. There is no doubt that labour has been put and there is some innovativeness applied to put a particular configuration in place. Such configuration is of the motifs and designs which by themselves would not be original. The originality is being claimed on the basis of the arrangement made. What cannot be lost sight of is the very object with which such arrangements or works had been made. The object is to put them to industrial use. An industrial process has to be done to apply the work or configuration to the textile. It is not something which has to be framed and put on the wall or would have any utility by itself. The two important aspects are the object with which it is made (which is industrial) and its inability to stand by itself as a piece of art. In fact, it has no independent existence of itself. ( 63 ) IN India, we have special legislations governing the protection of different nature of rights. Insofar as the industrial designs are concerned, the protection is provided under the Designs Act, 2000, which came into force from May, 2001 and repealed the earlier Designs Act, 1911. An important and relevant aspect is that both under the old Act and the new Act, fabric designs on textile goods have been classified as proper subject matter of design protection by inclusion as a specific class in the Rules framed under the Acts. In the Designs Act of 1911, class 13 and 14 of the Fourth Schedule of the Rules dealt with printed or woven designs of textile goods other than checks and stripes and checks and stripes respectively. Such protection is now provided under Class 05 of the new Design Rules of 2001. In the Designs Act of 1911, class 13 and 14 of the Fourth Schedule of the Rules dealt with printed or woven designs of textile goods other than checks and stripes and checks and stripes respectively. Such protection is now provided under Class 05 of the new Design Rules of 2001. ( 64 ) FURTHERMORE, the legislative intent is also to be kept in mind which is to provide protection for a certain period of time for commercial exploitation. Thus, nature of protection is quite different for an artistic work under the copyright Act which is for the lifetime of the author / creator + 60 years. This is not so in the case of commercial exploitation as under the Designs Act and the Patent Act the period is much lesser. In the present case, the configuration was made only with the object of putting it to industrial / commercial use. ( 65 ) THE exclusion of an artistic work as defined in Section 2 (c) of the copyright Act from the definition of design under Section 2 (d) of the Designs act, 2000 is only meant to exclude the nature of artistic works like painting of m. F. Hussain. It is, thus, the paintings, sculptors and such works of art which are sought to be specifically excluded from the new Act. ( 66 ) THE observations of the learned Single Judge in M/s. S. S. Sarna Inc. s case (supra) succinctly set out the concept behind excluding certain designs from protection under the Copyright Act which was to avoid any hindrance being caused to the manufacturer of sale and industrial articles. Thus, the intention of the legislature has been expressed as one to protect any artistic work which has to be commercially exploited by the owner of the copyright by not providing the protection under the Copyright Act, but under the earlier the Designs Act, 1911. A similar view was also expressed by another learned Single Judge of this Court in Samsonite Corporation s case (supra ). To this extent, I see no difference between the intent under the old Act and the new Act. A similar view was also expressed by another learned Single Judge of this Court in Samsonite Corporation s case (supra ). To this extent, I see no difference between the intent under the old Act and the new Act. A perusal of the statement of Objects and Reasons for introduction of the new Act, the handouts issued by the Design Office and the registrations made of textile fabrics both under the old Act and the new Act leave little manner of doubt that the protection for such configurations, designs or works (by whichever name it may be called) is provided under the Designs Act. It is, thus, apparently clear that in the context of the Indian Law, it is the Design Act of 1911 or 2000, which would give protection to the plaintiff and not the Copyright Act. The application of mind and skill is not being denied nor the fact that the defendants have copied the same, but that would still not amount to the works in question being labeled as artistic work within the definition of Section 2 (c) of the Copyright Act and, thus, the protection is not available under the copyright Act. Issue No. 1 is answered accordingly. ( 67 ) THE second issue arises from the provisions of Section 15 of the Copyright act. The Section provides that copyright subsists under the Copyright Act in any design, which is registered under the Designs Act, 1911 and in case a design is capable of being registered under the Designs Act, 1911, the copyright shall cease as long as any article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright or his licensee. It is not in dispute that reproduction has occurred more than 50 times. It is not also in dispute that there is no registration which has taken place under the Designs Act, 1911 (or under the Designs Act, 2000 ). ( 68 ) AN important aspect is that the designs and works have been registered in the years 1998-1999 or even prior to that and put to industrial / commercial use. At the relevant stage of time, it was the Designs Act of 1911 which was in operation since the Designs Act, 2000 came into force only in May, 2001. ( 68 ) AN important aspect is that the designs and works have been registered in the years 1998-1999 or even prior to that and put to industrial / commercial use. At the relevant stage of time, it was the Designs Act of 1911 which was in operation since the Designs Act, 2000 came into force only in May, 2001. The works of the plaintiff were capable of registration under the Designs Act of 1911. The plaintiff, however, failed to register the same at that relevant stage of time. It may be taken note of here that the plaintiff itself has set out that it registered the patterns under the Designs Act in England. ( 69 ) LEARNED counsel for the defendants has also referred to judgment of the house of Lords in King Features Syndicate Incorporated and Frank Cecil Betts, the Personal Representative of Elzie Chrisler Segar, Deceased v. O. and M. Kleeman Ld. , LVIII RPC 207. This judgment is commonly known as Popeye s case. The copyright was claimed in respect of the fictitious character drawing known as popeye the Sailor which had originally appeared in a series of cartoons and later in cinematograph films. The allegation of infringement related to reproduction of the character in the form of toys and brooches. The author, when he produced the drawing, had no intention of industrializing the same, but some years later, the character of Popeye had become popular and the author proceeded to licence certain manufacturers to make articles in the form of designs such as toys, brooches, etc. The relevant observations, however, relate to the fact that the House of Lords found that the legislature was drawing a distinction between the Copyright Act and what has been called design copyright or copyright and design under the Patent and Designs Act. It was held that the latter is a right distinct from the former, thus, the design means only the feature of shape, configuration, pattern or ornament applied to any other article by an industrial process which in the finished article appeal to and are judged solely by the eye. The design, thus, may be the shape of a coal scuttle, a basin, a motor car, a locomotive engine or any material object and it may be shaped and sculptured to serve as a model for commercial production. The design, thus, may be the shape of a coal scuttle, a basin, a motor car, a locomotive engine or any material object and it may be shaped and sculptured to serve as a model for commercial production. It may also be a drawing in the flat of a complex pattern intended to be used for the manufacture of things such as linoleum or wall paper. Designs copyright were, thus, held to be distinguished from artistic copyright. The rights under the patent and Designs Act were much narrower than those given by the Copyright Act and in respect of such products, it was not intended that they should have cumulative protection both under the Copyright Act and under the Patent and designs Act. ( 70 ) IT may be noticed that learned Single Judge of this Court in Polymer Papers ltd. v. Gurmit Singh and Ors. , 2002 (25) PTC 327 (Del) has considered the effect of Section 2 (c) of the Copyright Act and Section 11 of the Designs Act to come to the conclusion that industrial drawings and designs in which copyright was claimed were for purposes of manufacturing of filter related machines or components and as such clearly fell within the meaning of design as defined in the Designs Act of 2000 and since the alleged designs had not been registered under the Designs Act, the plaintiff in the suit could not claim any copyright therein. The submission of the plaintiffs that the copyright in artistic works was not required to be registered under the Designs Act was repealed since copyright was claimed of the industrial drawings and designs which were being used for manufacturing purposes. Once it was found that the designs or drawings were being used for manufacturing purposes and were not registered under the designs Act, 2000, the plaintiff was not held entitled to the relief. ( 71 ) THE linked question to this which, thus, arises is the requirement of registration by the plaintiff under the Designs Act of 2000. It is not in dispute that the plaintiff is not registered proprietor of the designs under the said Act. In terms of Section 11 of the Designs Act of 2000 when a design is registered, the registered proprietor of the design has copyright in the design for 10 years, which could be extended by another 5 years. It is not in dispute that the plaintiff is not registered proprietor of the designs under the said Act. In terms of Section 11 of the Designs Act of 2000 when a design is registered, the registered proprietor of the design has copyright in the design for 10 years, which could be extended by another 5 years. The legal proceedings under Section 22 of the Designs Act, 2000 would arise during the existence of the copyright in any design. ( 72 ) THE conspectus of the aforesaid shows that what the plaintiff was actually required to do was to register the designs which the plaintiff has failed to do. The designs are older and, thus, would have been registrable under the Designs act of 1911. The plaintiff failed to register the designs. Insofar as the designs Act of 2000 is concerned, the plaintiff has also admittedly not registered the designs under the said Act. It has already been discussed above that these designs were capable of registration under the earlier and the current Designs Acts. In fact, the Registrar of Designs had confirmed vide letter dated 19. 07. 2002 that the fabric designs continued to be registered under the Designs Act of 2000. The plaintiff had even initiated criminal proceedings where certain reports were filed by the investigative agency saying that the offences were really under the Designs Act and not under the Copyright Act. However, it is not necessary to dwell greater in respect of that matter. It would suffice to say that the patterns and designs of the plaintiff were capable of registration both under the old Act and the new Act and the plaintiff failed to do so with the result that the protection is not available to the plaintiff which would have arisen if they had been so registered. The said issues are answered accordingly. ( 73 ) ISSUE No. 4 relates to application of the Designs Act of 1911. It has already been noticed that most of the designs of the plaintiff had originated when the Designs Act of 1911 was in operation. The designs were created with the industrial intent to apply them to fabric or cloth and more than 50 reproductions have admittedly been made without registering the designs under the earlier Act. Thus, the earlier Act did apply to the designs of the plaintiff and the issue is answered accordingly. The designs were created with the industrial intent to apply them to fabric or cloth and more than 50 reproductions have admittedly been made without registering the designs under the earlier Act. Thus, the earlier Act did apply to the designs of the plaintiff and the issue is answered accordingly. ( 74 ) THE whole case of the plaintiff was actually based on infringement of the copyright of the plaintiff and the attempt of the defendants to pass off their goods as that of the plaintiff. In order for the plaintiff to succeed, the plaintiff ought to have proved that it was an artistic work within the meaning of the Copyright Act. That issue has been answered against the plaintiff. The designs of the plaintiff were liable to be registered under the Designs Act which the plaintiff failed to do. Thus, the protection is not available to the plaintiff under those Acts. ( 75 ) NO evidence has been led to show as to what is the nature of sales in India and whether the defendants are passing off their goods as that of the plaintiff. There is no doubt about the identical nature of the designs, but the plaintiff has failed to establish any case of passing off and damages arising therefrom. The goods are being sold under distinct and different trade names. The issues are accordingly answered against the plaintiff. ( 76 ) THIS issue arises from the allegation of the defendants of the plaintiff suppressing material. In fact, it is really not a case of suppression of fact and what the defendants have sought to contend is that the facts relating to the prior litigations should have been put forth in greater detail and not in an innocuous manner as sought to be put by the plaintiff. I find no basis to come to the conclusion that the plaintiff is guilty of suppression of material facts. ( 77 ) IN view of the findings arrived at on the aforesaid issues, the plaintiff has failed to make out a case of having completed the requisite formalities in law so as to avail the benefit of the exclusive use of the patterns and designs in question. ( 78 ) THE suit is accordingly dismissed, but in the given facts and circumstances, the parties are left to bear their own costs. .