The in surge of litigation is not merely restricted to
protect marks, labels or get ups, but has over flown to other
realms as well. Dealing with the shape of the container, is the
case of Dabur India Ltd. v. Rajesh Kumar and Ors.
[2008 (37) PTC 227 (Del.)]. The suit at hand was a suit for
permanent injunction claiming that Rajesh Kumar and his
co-parties were infringing Dabur' trade mark and its
registered design while passing off their goods as those of
Dabur claimed that it was marketing 'Dabur Amla Hair
Oil' in bottles having a distinctive design - a semi
circular shoulder with a curvaceous back and front panel
converging taperly into each other. They claimed the shape and
configuration of the bottle to be unique, novel and original
and had registered the same under the Designs Act, being valid
until February, 2011. The green cap put over the bottle was
also registered under Designs being valid until June, 2011.
They also contended that these bottles had the trademark
'Dabur' embossed at the bottom. Dabur alleged
that Rajesh Kumar was manufacturing plastic bottles which were
an imitation of Dabur' bottles and also alleged to
carry the 'Dabur' trade mark embossing at the
bottom. They also alleged Rajesh Kumar of selling these bottles
to counterfeiters of 'Dabur Amla Hair Oil'. An
ex parte interim order had been granted to Dabur by the Court
for seizure of the infringing material.
Rajesh Kumar in his written statement stated that the suit
was liable to be dismissed since it was based on false and
frivolous allegations. They claimed not to have been imitating
the bottles of Dabur while asserting that no embossing of
Dabur' trade mark on any part of the bottles seized by
the Local Commissioner or being sold by them. They asserted
that they were not copying or infringing the designs of Dabur.
They stated that the bottles were being sold for multifarious
uses of different persons and that they were selling empty
bottles without any mark or number over these bottles. Selling
of bottles of different sizes and shapes along with cap was
their sphere of business.
During the arguments, bottles of both the parties, were
produced and compared in the Court. The Court noted that Dabur
had made a false averment in the plaint that Rajesh Kumar was
selling bottles with trade mark of the plaintiff embossed on
the bottle. None of the bottles that had been seized bore the
trade mark 'Dabur' either at the bottom or at
any other place. Neither any of the Local Commissioners in his
report has stated that the bottle was having embossing of trade
mark of 'Dabur'. It is apparent that Dabur to
make out a case of infringement of trade mark and design had
made a false averment.
The Court also opined that the bottles used by Dabur were
commonly used by other companies as well for marketing hair
oil, fixers and liquid products. Further, they stated that a
perusal of the design registration certificate of Dabur showed
that the plaintiff had not got any peculiar feature of the
bottle registered as a design, but the whole bottle registered
as a design. A plastic bottle is not being a new thing, they
stated the same to have a very common shape and devoid of any
peculiar eye catching design or shape. The Court also referred
to a plethora of cases cited to substantiate its opinion. They
also stated an absence of a substantial difference in
Dabur' bottle and the bottles used earlier or
registered earlier as design by other companies with different
The Court concluded that a strong prima facie case that the
trademark or design held by Dabur was infringed. The bottles of
Rajesh Kumar did not bear trade mark of Dabur. Rajesh Kumar
trading in empty bottles, could be used by anyone and everyone
for filling any kind of liquid and that no presumption that
these bottles can be used only for imitation and marketing of
'Dabur Amla Hair Oil' could be existent. In
this light, Dabur' prayer stood unanswered and his
The Court in the case seems to have given due regard to all
the aspects appended to the use of the bottle's design
in question. Going beyond the tenets of design law, the Court
has taken into consideration practicalities and has delivered a
judgment which is likely to deter frivolous litigation in the
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
Department of Industrial Policy and Promotion recently issued an office memorandum pursuant to receiving representations from various stakeholders for guidance with respect to the applicability of the provisions of Section 31D of the Copyright Act, 1957.
An Invention Disclosure Form is the documentation of the invention. This is a means to document particulars of your invention and submitting it to the patent attorney who is filing your patent application.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).