SC issues notice to patents authority over Colgate-Anchor toothbrush row

In a legal battle being fought over toothbrush designs, the Supreme Court has issued a notice to the Controller of Patents and Designs and the Mumbai-based Anchor Health and Beauty Care on a petition filed by US-based Colgate Palmolive Company.

A bench headed by Justice Dalveer Bhandari sought a reply from Anchor and the patents authority as to why Colgate should not be allowed to manufacture and market its Colgate Zig-Zag design toothbrush. It also tagged the Colgate petition with the cross-appeals filed by Anchor.

Colgate has challenged the Calcutta High Court judgment that had held that Colgate?s Zig-Zag design could not have been registered as Anchor?s registered designs were published first. Colgate argued the provisions in the Designs Act, 2000, clearly stipulate that subsequent registration cannot be held invalid on account of previous registration or previous publication.

The dispute started with Colgate Palmolive registering three toothbrush designs ? Colgate Sensitive, Colgate Zig-Zag Flexible and Colgate Zig-Zag ? with the patents office and rivals Anchor Health and Beauty Care filing petitions seeking cancellation of these designs.

Anchor claimed the designs could not be registered afresh as its similar product, Anchor Advance Grip, had already been patented both in India and abroad.

After a series of hearings, the Controller of Patents and Designs in July 2008 held that the three models registered as ?toothbrushes? by Colgate Palmolive satisfied the definition of ?design? under the Designs Act, 2000.

The department found that all the three designs of the toothbrush ? head, bristles and handle ? were different from products registered earlier. This was challenged by Anchor in an appeal before the high court. While the high court upheld the Controller?s order on two toothbrush designs registered by Colgate Palmolive but ordered cancellation of the Colgate Zig-Zag design.

?The high court erred in failing to consider that a registered design can be cancelled on the ground of prior registration in India under Section 19 (1) (a) of the Designs Act only if the design registered prior in time is held to be identical to the subsequent design for which cancellation is sought,? the petition filed by Colgate through counsel Hari Shankar K stated.

Colgate?s petition against Anchor for infringement of its Colgate Active Salt and Colgate Strong Teeth toothpaste is pending before the Delhi High Court.