A recent Civil Suit filed by Dabur India Ltd. against Emami Ltd. over the dispute of the similarity in the design of their product is a case in point regarding the impression created by a design and its alleged infringement.
Dabur vide order dated March 9, 2004 had got Emami restrained from exhibiting in its television commercial the bottle of hair oil which was shown with the remark "Lekin Ek Tail Bechara Kya Kare [what a mere oil can do]", as the design of the said bottle was similar / identical to the design of Dabur’s bottle which is registered design. However, Emami was permitted to change the bottle and continue with the T.V. Commercial for publicizing its hair oil. Emami accordingly changed the bottle along with its cap.
Dabur, however, submitted that if one were to look at the television commercial as a movie rather than as a sequence of stills, it would become clear that the impression that is created with the public is the same before or after the change. Emami’s stand was that they had completely changed the bottle. However, if the impression is that the bottle is same, then it was never their intention to disobey the Court’s order.
A design does not consist of the shape or pattern as such, but of the shape or pattern as applied to some specific article in respect of which the design is registered. A registered design therefore confers on the proprietor an exclusive right to apply the design to any article in respect of which the design is registered.
A design applied to an article along with the product or forming the product itself often constitutes the composite viewable object and any infringement of a design per se involves the most debatable aspect of infringement i.e. the question whether the design applied to the allegedly infringing article is sufficiently similar or substantially the same as to the registered design to infringe.
The test of infringement is objective and the process can consist of the following two steps.
 Identifying the features which constitutes the design in each case
 Identifying the similarities and differences between the two cases
In order to ascertain what the registered design is, it is necessary to examine the representation of the design on the register. An actual manufactured article embodying the design may also be looked at to assist the process of comparison. The comparison need not be of all the features of shape applied to the article, but only those features which have "eye-appeal".
As an aid to the process of comparison in assessing whether or not differences are substantial, the registered design and the alleged infringing article can be evaluated not only together but also separately i.e. the two designs must be looked at an interval of time. The eye for this purpose will be the eye of the customer. Here the concept of visual impression of the design on the mind of the customer and its recollection comes into play in determining infringement of design. This particular stage of imperfect recollection in design infringement evaluation has its place when the phrase "fraudulent imitation" is a statutory test of design infringement that is when the test of infringement requires copying as an ‘essential’ element and this "fraudulent imitation" requires a "copyright in a registered design".
The Design, like Trademark, when operated as indicia of trade origin has a direct bearing on the "visual impression & recollection" and the "fraudulent imitation" under infringement of design.
Thus the submission of Dabur in the instant case that the impression that is created with the public is the same before or after the change in relation to the design of the bottle amply proves the point.
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