Plaintiffs allege infringement by Defendant of their Registered Design No. 306577 which was the subject matter of Diageo Brands B.V. v. Great Galleon Ventures Limited, 2022 SCC OnLine Del 2350 [‘Great Galleon’] as well. Senior Advocate, Amit Sibal points out, Section 22 of The Designs Act, 2000 identifies ‘obvious’ and ‘fraudulent’ imitation as the test. It has to be examined whether Defendant’s Design is an ‘obvious’ or a ‘fraudulent’ imitation of Suit Design.

A ‘dimpled base’ is a standard feature. Irrespective of same, Defendant‘s Design in Great Galleon was a near identical replica. In present case, one finds several striking differences. The ‘eye’, Mr. Sibal submits, has to be of an ‘average purchaser’. The test of an ‘average consumer’ would not be appropriate.

B. Chawla v. Bright Auto Industries, AIR 1981 Del 95 (DB) binds me. No decision of any other Division Bench or of any hierarchically superior Court has been brought to my notice. Defendant’s Design has to be viewed from an ‘instructed eye’. The ‘instructed eye’ has to be of an ‘informed person’ and not of an ‘average consumer’ much less of a consumer of ‘average intelligence and imperfect recollection’. Great Galleon had not approached an ‘instructed eye’, contrary to law enunciated in B. Chawla.

Viewed from an ‘instructed eye’, it is not possible for me to hold, prima facie, Defendant’s Design was an ‘obvious’ or a ‘fraudulent’ imitation of Suit Design. Defendant is not injuncted from marketing or manufacturing…

– Hon’ble Justice C. Hari Shankar of Hon’ble High Court of Delhi, Diageo Brands B.V. v. Alcobrew Distilleries India Pvt. Ltd., [CS(COMM) 30/2022] decided on 19.12.2022.