S.K. Industries instituted a suit (S.K. Industries Pvt. Ltd.
v. Rite Foods Product (P) Ltd. 2008 (38) PTC 200 (Del.))
praying for a decree of permanent injunction restraining Rite Foods
Product (P) Ltd. and Ors. from infringing their design of Duck
jars. S.K. Industries is a company registered at Delhi and is
engaged in manufacturing, selling, distributing and marketing
confectionery items under the trademark 'MAHAK', duly
registered in its favour under the Trademarks Act, 1958. Rite Foods
is registered under the Companies Act, 1956, doing business at
Madhya Pradesh. The co-defendants are associated to Rite each being
its sister concern, stockist, manufacturer and proprietor of the
S.K. Industries submitted that they were selling its products
under the trademark 'MAHAK' and were marketing and selling
its product 'MAHAK FRUGURT' in a comic shaped jar
comprising a representation of a duck jar with unique features,
bearing a pair of eyes, wings and a protruding beak. The jar is
specially designed to be placed on a pair of legs. The upper end of
the jar is open and the lid is designed in the form of a hat. The
collective turnover of S.K. Industries was also rendered and a sum
of over Rs. 26.00 Lakhs was stated to have been spent in
advertising its products and the registered design in the impugned
container, during the year 2003. They also claim to have learnt of
the infringement in the year 2005. The attention of the Court was
diverted to the photographs of the original and infringing products
and stated that Rite Foods had blatantly copied their design, thus
committing infringement in their copyright.
S.K. Industries also averred that the act amounted to violation
and infringement of the copyright in the aforesaid design and has
been committed with malafide intention. Vide an ex-parte
ad interim injunction Rite was restrained from selling their
confectionery items in jars/containers of the design while
appointing a Local Commissioners to visit the premises used by Rite
located at Madhya Pradesh and Haryana and make inventory of their
goods. They were also directed to take into custody the infringing
products which were similar to the S.K. Industries' product.
Pursuant to the aforesaid order, the Local Commissioners executed
the commissions and filed their respective findings.
On perusal of the impugned Duck Jar design, the Court found that
Rite Foods had not copied the shape of the jar alone, but also the
accessories including the head, beak, eyes and the legs as in the
design. The placement of the sticker in the front of the container
was also found to have been copied. The Court opined that the
present case was not one of infringement of trademark, but was
infact a case of the infringement of the copyright in the design of
the registered owner of the Duck shaped containers. They found the
evidence adduced unrebutted and stated that there existed no reason
for them to disbelieve the same.
A number of judgments were cited and the principles laid down in
them were found to be squarely applicable to the facts and
circumstances in the present case. The Court noted that Rite had
not been assigned any right of interest to use its design and get
up of the Duck jars cartons used for the sale of its confectionary
In this light, a decree of permanent injunction was passed in
favour of S.K. Industries and against Rite Foods, restraining them
from manufacturing, offering for sale, marketing, advertising,
distributing or dealing in the deceptively similar Duck shaped
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