Delhi High Court writes off design infringement

In Mitsubishi Pencil Co Ltd v Flair Pen & Plastics Ltd (unpublished) - a suit filed by Mitsubishi Pencil together with its Calcutta-based sole distributor Linc Pen & Plastics Ltd - the Delhi High Court has restrained Mumbai-based company Flair Pen & Plastics from manufacturing and selling pens which prima facie appear to be similar in design to a Mitsubishi pen sold under the mark UNI-BALL VISION ELITE.

Mitsubishi owns design rights in the Uni-Ball Vision Elite pens sold in India through its distributor Linc Pen & Plastics. The design was registered in India under the Designs Act 2000. The pens were formally launched in India in October 2002 and are sold for Rs75. Mitsubishi and Linc contended that as a result of test marketing prior to the launch, the product had come to be exclusively associated with Mitsubishi.

In August 2002 Mitsubishi discovered that Flair was proposing to launch a model, Flair Sporty Writo-Meter, which was an imitation of Mitsubishi's design. While the Uni-Ball Vision Elite was priced at Rs75, the Flair pens were being offered at Rs20. Mitsubishi and Linc stated that Flair had adopted the same design with a view to passing off its inferior-quality pens as belonging to Mitsubishi.

The court agreed with the plaintiffs, holding that a comparison of the two pens showed similarities not only in design, but also in the colour combinations used. It was thus likely that unwary customers would be deceived and confused as to the origin of the Flair Sporty Writo-Meter. Accordingly, the court issued an ex parte interim order restraining Flair from manufacturing and marketing the pen.

Gladys Mirandah, Ella Cheong Mirandah & Sprusons, Singapore