The get-up, packaging, representation of a product plays a key role in the marketing and sale of the product. An inherently distinctive packaging style or a packaging which has acquired distinctiveness by virtue of its continuous use is also capable of being protecting under the Indian Trade Marks law. In the recent case of Ferrero Spa & Anr vs Piyush Devangan & Anr at the centre of the controversy was the identical packaging of chocolates by an Indian proprietor.
Ferrero Rochers are popular chocolates which are sold in a rectangular box with soft edges as corners, this box has 16 chocolates divided into two rows. The chocolates are wrapped in a golden wrapper with a white sticker on each of these chocolates' wrapper, the round chocolates are then places on flute brown colored cupcake shaped wrappers. It was the case of Ferrero Rochers that the Defendants (Piyush Devangan & Anr.) were selling their chocolates under the brand 'D-lizie' but with identical packaging style. It was asserted by Ferrero Rocher that this action of the Defendants amounted to infringement of its statutory rights as well as passing off, of its goods as that originating from Ferrero Rocher.The following are the images of the two products:
A perusal of the overall packaging and presentation of the products clearly shows that an ordinary purchaser may be deceived into purchasing the chocolates under the brand 'D-lizie' mistaking it to be similar to or the same as Ferrero Rocher chocolates and this is in contravention of the founding principles of Trade Marks Act, 1999. The judge perused the matter and observed that Ferrero Rocher had established a prima-facie case against the Respondent. The unique point of this case is that even though the traditional trademarks i.e. the brand name of the chocolates are dissimilar it still does not mitigate the possibility of being sued for trade mark infringement and passing off if the packaging is deceptively similar. In trademarks law, the visual test for determining similarity is as important as aural similarity between two trademarks. Therefore, this case is a good precedent against scrupulous traders who may adopt a different trade mark but identical packaging and presentation of a product to cause confusion in the minds of members of trade and public.
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