When it comes to toffees, candies and chocolates, the first thing that catches the eye is the wrapper and much of the visual information is related to color. The use of distinctive color schemes and combinations are a not only a means to attract the consumers but also contains the uniqueness of a particular product. Given the nature of the products like candies and chocolates, the target consumers are children. Thus when products in the same category are launched in the market in similar packages or are deceptively similar, there exists every possibility of passing off. This can affect the original goods adversely.
In this regard the recent Amber Food Products v. Dilip Kirpalani & Ors. 2006 (33) PTC 118 (Del.), may be referred to. Amber Food Products has been manufacturing, marketing and selling toffees and confectionaries under the brand name ‘smooth milk’ in Madhya Pradesh and in various other Indian cities. In 2005 it adopted the trade mark ‘smooth milk’. The plaintiff moreover has the copy right over the design of the label and is also its prior user. The plaintiffs’ products marketed and sold under this trade name became instantly popular in Delhi. The plaintiffs also submitted record of their sales figure for the year 2005 in support of their arguments. The labels of ‘smooth milk’ have a distinctive get up, color scheme and lay out.
The defendants on the other hand were selling their product, ‘Delicious Caramel Candies’ under the trademark ‘smooth butter’. The case of the plaintiffs was that the defendants have, therein dishonestly copied their trade label and thereby was causing confusion in the minds of its consumers. It was also argued that, in doing so and since the products being sold were identical, the defendants were trying to pass off their products as those of the plaintiffs.
The court considered the matter before it, examined the wrappers used by both the parties for their respective products and found that though the wrappers were not identical but were deceptively similar and hence the defendants had infringed the artistic feature, get up, lay out and color scheme of the plaintiff’s packaging in ‘smooth milk’.
Based on the aforesaid findings the Court granted an injunction restraining the defendants from using the label ‘smooth butter’ or any other label which may be similar to that of the plaintiff’s label ‘smooth milk’. Further, the defendants were also restrained from selling their product with the label similar to that of the plaintiff’s label ‘smooth milk’. There was a further order to deliver up the infringing labels as well as other articles which may carry the same lay out or get up of the label of the plaintiff’s product.
Slight variations in packages could not only lead to infringement issues but can also contribute to other issues falling within the ambit of consumer protection. Hence it becomes imperative on the Courts that while upholding the Intellectual Property rights of the aggrieved, the aspect that the quality, uniqueness and value of the products in the markets should not be affected due to sheer competition, should also be upheld. Enforcement of IP rights thus benefits not only the owner of the rights but also ensures consumers freedom of choice devoid of deception.
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