JUDGMENT : Patherya J. 1. This appeal has been filed by the appellant from order dated 16th January, 2008 whereby the application of the appellant for cancellation of the respondent No. 2’s design No. 180660 dated 26th October, 1999 for “Container Lid” registered under Class 3 was dismissed. 2. Counsel for the appellant submits that the respondent No. 2 has obtained registration of design contained in a lid. In October 1997 a publication was made in the Andhra Pradesh Times. There can be no registration of a design prior published. The design was also registered earlier. U.S. Patent was granted to the design in May 1998. The registered design is functional and has no independent utility nor can it be sold separately. The registration granted on 26th October, 1999 is the second registration of a design which is not a design under Section 2(d) of the Designs Act, 2000. The first registration was granted on 9th October, 1998. Section 4 of the Designs Act, 2000 (2000 Act) prohibits registration of – “A design which – (a) is not new or original; or (b) has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or (c) is not significantly distinguishable from known designs or combination of known designs; or (d) xxx xxx xxx xxx xxx shall not be registered.” 3. “Design” has been defined in Section 2(d) and must be in an “article” which has been defined in Section 2(a). For it to be entitled to registration it must be new, original, not in use, not published earlier to the filing of application for registration and must be distinguishable from known designs. 4. None of these conditions have been satisfied in the instant case as the design was in use prior to the date of application, was neither new nor original had been published in Andhra Pradesh Times, had been disclosed to the public and had no distinct or distinguishing feature, and the application filed by the appellant ought to have been allowed and design 180660 cancelled. 5. 5. Reliance is placed on AIR (1981) Delhi 95, for the proposition that addition of a further curve will not make the variation a striking one to constitute novelty, AIR (1968) Cal 109 for the proposition that unless there is substantial difference from the earlier registered design will not make it new or original. 6. Prior registration is prior publication as held in MIPR (2009) 3202. For the design being functional reliance is placed on AIR (1983) Delhi 255. 7. Opposing the said appeal Counsel for the respondent No. 2 submits that Paragraph 21 of the statement for cancellation be looked into. Sections 2(a) and 2(d) be also considered. 8. Reliance is placed on (2008) PTC 109 to highlight the objectives of the Designs Act, 2000 vis-a-vis the 1911 Act, namely, to create the required incentive for design activity and remove impediments to free use of available designs and it is only for this reason that the definition of “article” and “design” was enlarged and “original” defined. 9. “Lid” and “Container” are articles per se and can be registered. In 1999 by design No. 180660 “Container Lid” alone was registered. 10. There has been no prior registration in respect of the present design. The first registration of 1999 was in respect of a broad rim skirting on the lid with ribs on surface while the second registration is in respect of a narrow rim. In Paragraph 3.71 of Russell-Clarke and Howe on Industrial Designs 7th edition it has been clearly stated that a design may be new and original by virtue of an omission so also addition. 11. According to Narayanan on Law of Copyright and Industrial Designs the design as a whole must be looked into and it must appeal to the eye of the customer not Court as held in (1988) 16 RPC 343. 12. Reliance is also placed on (2001) 21 PTC 23 . The ornamental rib and size cutting on the top exhibits a different design and in a complaint filed the burden is on the complainant to discharge as held in (2006) 43 PTC 44, AIR (2008) SC 2520. The small container has a thick band vis-a-vis the narrow band. The small container vis-a-vis the bigger containers but none have manufactured it. Paragraph 3.149 of Russell-Clarke, (2000) PTC 177 and (2005) 31 PTC 129 be also looked into. The small container has a thick band vis-a-vis the narrow band. The small container vis-a-vis the bigger containers but none have manufactured it. Paragraph 3.149 of Russell-Clarke, (2000) PTC 177 and (2005) 31 PTC 129 be also looked into. Multiple lid was cited for prior publication, but it has not been stated which lid has been prior published. Therefore, the appeal fails and the order of the Controller be upheld. 13. In reply Counsel for the appellant submits that the judgments relied on by the respondent will not aid it after the 2000 Act. Section 2(d) and the 1911 Act is not extended to lines as under the 2000 Act. There is no novelty in lines. Cancellation under the 2000 Act is wider than under Section 51A of the 1911 Act. The counter-statement at Page 53 be looked into. The container lid in respect of the conical pail was pre-published. Broad band on the container lid is a trade variant and the skirting is functional. 2000 PTC 177 is distinguishable so also (2005) 31 PTC 129. (2001) 21 PTC 23 is a case of injunction as both filed cancellation applications and no order was passed. AIR (2008) SC 2520 was a case of surface pattern. 14. Having considered the submissions of the parties, an application for second registration was filed and registration allowed on 26th October, 1999. The appellants by this appeal are seeking to set-aside the order dated 16th January, 2008 passed by the Assistant Controller of Patents and Designs whereby and whereunder the application filed by the appellants was dismissed. 15. According to the appellant the impugned design in the lid of the respondent No. 2 was registered for a second time in October 1999 which was not permissible as the design was not only previously registered in October 1998 but had been prior published too in October 1997 in Andhra Times. The design was also patented in the U.S. in March 1998. Therefore, the registration of 1999 being registered design No. 180660 was liable to be set-aside as the same was neither new nor original and, therefore, was not a design as defined under Section 2(d) of the 2000 Act. Its purpose was functional and did not have any independent use. 16. On the other hand, the respondent No. 2 has tried to highlight the difference in registered design No. 180660 of 1999 and registered design nos. Its purpose was functional and did not have any independent use. 16. On the other hand, the respondent No. 2 has tried to highlight the difference in registered design No. 180660 of 1999 and registered design nos. 177677 and 177678 of 1998, so also the U.S. patented design. 17. Each of the issues raised by the appellants was considered by the adjudicating authority, namely, the respondent No. 1 in detail. A visual comparison of each of the registered design was also undertaken and dealt with. 18. Admittedly the design of which complaint is made is in the “Container Lid”. The publication of 27th October, 1997 relied on shows on display a number of containers with lids. There are lids with spouts too but the picture is not clear enough to decipher the surface ornamentation of the container lid. The appellant has also not marked anyone container lid in particular to show prior publication of design 180660 of 1999. A container lid in the course of hearing was handed to Court being a prior published lid. The design of the spout and surface ornamentation on a visual comparison is different from designs 177677 and 177678. Therefore, the finding of the adjudicating authority cannot be faulted. 19. Before the adjudicating authority the design registered by Poranunt Thailand was not pursued and need not be addressed. 20. However, on a visual comparison of the “Lids” comprised in design nos.177677 and 177678 vis-a-vis 180660 the features contained in each of the designs of 1998 and 1999 are different. The design has to be taken as a whole as it is the shape, configuration and pattern which constitutes a design. In 177677 it has specifically been stated that the novelty in the design resides in the groove, spout and ornamental pattern of the lid while in 180660 it has been stated that the novelty resides in the shape and configuration as illustrated and when seen the following emerges vis-a-vis 177677 and 180660. In design 177677 surface ornamentation is different as neither the groove nor the surface is ribbed as in 180660. The spout on the surface also has a broad rim in 177677 which is narrowed in 180660. On the inner side too of design 177677 the ribs are far from each other and few in number while in design 180660 the ribs are closer and many in number. The spout on the surface also has a broad rim in 177677 which is narrowed in 180660. On the inner side too of design 177677 the ribs are far from each other and few in number while in design 180660 the ribs are closer and many in number. This makes design 180660 in the subject article, namely, container lid new and original. 21. In design 177678 novelty resides in the groove and spout of the lid. As the surface is not ornamental no novelty is claimed thereof whereas in design 180660 novelty in the design is claimed in respect of the shape and configuration illustrated on the lid and the top surface of the container lid is not only ribbed but also has a rim. This renders design 180660 different from design 177678. 22. Design 180660 has been registered in respect of novelty alone and it has been specifically stated that no claim is made in respect of mechanical or other action mechanism. Therefore, the submission with regard to the design having a mere mechanical function and thus not registrable is unfounded. 23. The container lid is undoubtedly an attachment of the container but cannot be described to be a part of the container. It is an article as it has been registered under Class 3 of the 1911 Act and by virtue of Section 48(2) of the 2000 Act shall continue to be in force. The adjudicating authority has considered Class 3 of the 1911 Act, Section 48(2) of the 1911 Act and Class 9 and 9-7 of the 2000 Act and thereafter held that the container lid is an “article” in itself and not a part of the “article”. The adjudicating authority also considered the decision of the Controller in respect of registered design No. 191652 and 191653 on the same issue which has not been reversed. At hearing in appeal too it has not been brought to the notice of this Court that the order of the Controller on the same issue has been set-aside. 24. AIR (1981) Delhi 95 does not aid the appellant as in the reported decision the appellants therein had not endorsed the extent and nature of novelty in the application for registration, in the instant case the adjudicating authority used his eye to discern the novelty aspect as did the judge in the reported decision and held against the appellant. 25. AIR (1981) Delhi 95 does not aid the appellant as in the reported decision the appellants therein had not endorsed the extent and nature of novelty in the application for registration, in the instant case the adjudicating authority used his eye to discern the novelty aspect as did the judge in the reported decision and held against the appellant. 25. There is no dispute with the proposition laid down in MIPR (2009) 3202 or AIR (1983) Delhi 255 but in view of the findings of the adjudicating authority will not apply to the instant case. 26. No allegation of bias or not giving a hearing by the adjudicating authority has been canvassed by the appellant, therefore, this appeal for the above reasons merits no order and is dismissed.