In passing off cases, the general test followed by the Courts in
deciding whether the get-up of one product is a copy of another is
not by placing the two products side by side and counting the
similarities or the differences but rather to remember the
Plaintiff's product and then view the Defendant's. In a
recent case ITC Limited v. Crescendo Tobacco Agency and
Anr. the Kolkata High Court reiterated this principle in
finding Crescendo's products not capable of creating confusion
in relation to ITC's products.
The issue in this case arose between ITC Limited and Crescendo
Tobacco Agency and Anr, when ITC felt that Crescendo had altered
the get-up and packaging of its "SPECIAL" brand of
cigarettes in order to imitate the metallic red and flaming gold
packet of its "GOLD FLAKE" brand and in doing so had
acted dishonestly and had tried to appropriate its goodwill.
Although, accepting that there were some dissimilarities between
the two packets, ITC insisted that there was every likelihood that
a would-be customer of "GOLD FLAKE" being confused at the
sight of the "SPECIAL" packet would be deceived into
settling for that instead of the "GOLD FLAKE" packet. It
was contended by ITC that the Court should use the test not from
the eyes of the educated urban consumer but from the point of view
of an unsuspecting rustic who may be deceived into purchasing
Crescendo's products while actually intending to purchase that
Crescendo, in reply, suggested that ITC's case should be
discredited since ITC marketed its "GOLDFLAKE" brand in
packets of other hues and that ITC in its pleadings had made no
distinction between the sales figures of its "GOLD FLAKE"
brand marketed in red and gold packets and those sold in other
packets and as such were seeking to give the impression that their
"GOLD FLAKE" brand was sold only in red and gold packets
as a result of which these packets had come to be exclusively
associated with the brand.
The Court opined that the test to be applied is the "test
of the eye", whereby if the eye reminds a person of the
Plaintiff's products upon looking at the Defendant's
products, not only because of a similar colour combination but also
on the impression of the other distinctive features, then an
injunction should follow. The test will be met if a passing glance
at the Defendant's products brings to mind the Plaintiff's
products. However, in cases where the eye does not recall the
Plaintiff's product upon looking at the Defendant's
product, then the injunction should be refused.
Applying this test to the present case, the Court observed that
ITC's cigarette packet did not exhibit a significant
distinctiveness in pattern. Further, an unusual colour combination
with exceptional features may by itself give an attractive and
lasting impression of the product, however the combination of bland
metallic red and flashy gold, would hardly be able to bring about
the same idea. The Court thus held that Crescendo's cigarette
packet was not capable of causing confusion with ITC's
"GOLD FLAKE" and as such ITC's interlocutory
application was dismissed.
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