India: ´Dabur’ Design Decided Upon: No Infringement

Last Updated: 5 September 2008

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'.

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 features.

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 application dismissed.

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 future.

© Lex Orbis 2008

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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