In the recent decision of Delhi High Court in the case of
Reckitt Benckiser(India) Ltd v Dabur India Ltd, the Hon'ble
court decided on the issue of deceptive similarity between
the television advertisement of Pudin Hara lemon fizz drink
Facts of the case:
The plaintiffs is a member of Reckitt Benckiser Group PLC
who involved in the various consumer and healthcare products . It
also manufactures Gaviscon which provide relief from heartburn and
gastro oesophageal reflux. In the year 2006 the plaintiff started
using Fireman Device for the advertising and
promoting his product in the market. Fireman
Device was registered in India in favour of the plaintiffs
on 22nd October, 2007 in Class 5.
The defendant is the manufacturer of various Ayurvedic and
non-prescription medicines such as Pudin Hara, , Hajmola, Glucose-D
etc. Reckitt Benckiser alleging that the ads for Dabur's Pudin
Hara lemon fizz drink had "infringed its trademark and
copyright". The point of dispute is the image of
Fireman /fire fighter.
In both the advertisement a person is suffering from
gastro-oesophageal reflux disease/heartburn.
Both the advertisements show fire burning inside the
Then a person consumes medicine & the medicine converts
into the image of a fireman which extinguishes the fire by
sprinkling the product on the stomach walls.
Delhi High Court decision
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After comparing the advertisement, the Delhi High court
concluded that Dabur's fireman device was not deceptively
similar to the registered mark. The mark appears to be different in
terms of colour, representation and number. Therefore there was no
likely hood confusion and no infringement had occurred.
The defendant product i.e Pudin Hara Lemon Fizz
is sold in Indian market since April, 2010 whereas
the plaintiff product i.e Gaviscon was introduced in Indian market
in November 2011.Hence Reckitt Benckiser could not establish
goodwill in India prior to Dabur and the element of
misrepresentation was also missing. So, Dabur had not committed the
tort of passing off.
The court concluded that there were several dissimilarity
between both the advertisement in respect of
their colour, representation and image of fireman device. The
court relied on the Supreme Court decision in RG Anand v
Delux Films (1979 SCR (1) 218) to reiterate the
established principle that only the manner of expression of ideas
is protected under copyright law (not the ideas themselves). Thus,
the court held that there had been no copyright infringement.
The court has, however, said that if there is any
modification in the television Commercial Ad, Dabur would need to
take necessary permission from the court.
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