Sanjay Kapur & Anr. v. Dev Agri Farms Pvt. Ltd.;
2014 (59) PTC 93 (Del)
Plaintiff was selling tea pouches in a particular packaging since 1981. As per the Plaintiff the packaging was distinctive. It comprised a soft paper packet shaped in rectangular sided cuboid. This packet was shipped in a fabric sleeve and was closed at top by a dory/drawstring. The said pack is then decorated with ribbon and the label tied around the fabric bag.
Plaintiff filed a suit for infringement of Copyright and passing off against the Defendant. As per the Plaintiff, the Defendant was using a similar packaging.
Defendant contested the suit on the ground of delay (Defendant claimed use since 2008) and packaging being non-distinctive and common to trade. Defendant also urged that the competing products are gift pack aromatic organic teas and hence very expensive and the buyer is an informed, sophisticated buyer, who will not be confused. Alternatively, the Defendant argued, that even if the trade dress is considered similar, the trade marks are different.
The Hon’ble Court relied on Section 2(zb) of the Trade Marks Act, 1999 which defines “Trade Mark” to recognize protection of shapes as trade marks.
The Hon’ble Court further relied on long user of the Plaintiff, extensive sales of the Plaintiff, advertisements in newspapers since 1992 and turn over of the Plaintiff to come to a conclusion towards distinctiveness in the packaging.
The Hon’ble Court found the cuboidal/rectangular shape with unique stand-up pack with Indian look fabric with the traditional dori on top used with a glossy packing to be distinctive.
The argument of third-party use was rejected by relying on Pankaj Goel v. Dabur India Ltd.; 2008 (38) PTC 49.
The argument of the Defendant of being inn the trade since 2008 was also rejected as the same appeared to be doctored.
Lastly, the Court relied on Laxmikant V. Patel v. Chetanbhai Shah & Anr. to hold that fraud is not necessary in passing off, neither the proof of actual damage is necessary and only a likelihood of damage is sufficient.
The Defendant was restrained from using an identical or deceptively similar packaging as Plaintiff’s Packaging.