Vicco Laboratories, Bombay v. Hindustan Rimmer, Delhi
AIR 1979 Delhi 114
Plaintiff was manufacturing and marketing since 1965 vanishing cream containing turmeric and sandal wood under the name of Vicco Turmeric Vanishing Cream. Plaintiff had been marketing the said cream in tubes in cartons. The carton and tubes had a distinctive get up and colour scheme, i.e., red background with yellow floral design and printing in white letters. On two sides of the carton there were floral designs with the words ‘Vicco Turmeric’ in first line, words ‘Vanishing Cream’ in the second line and words ‘An Ayurvedic Preparation’ in the third line. On the third side of the carton there was floral design with the words ‘manufactured in India by’ printed in the first line and the Plaintiff’s ‘name and address in the second and third line. On the fourth side of the carton the uses of the said cream were mentioned. The get-up, colour scheme, arrangement of features on the tube was also similar except that the writings on the tube were yellow. The cap of the tube was yellow and the tube had a Yellow strip in the bottom. The total sales of the said product since April, 1975 up to December, 1977 are of Rs. 1,77,31,377/-.
The Defendant’s launched an identical product called ‘Cosmo’ and the colour scheme, get-up, layout and arrangement of features of the same were identical to Plaintiff’s product ‘Vicco’.
• By reason of sales and publicity their product has become popular in the market and by reason of distinctive get-up and colour scheme, the tube and the carton have come to be associated by the trade and the members of the public as the product of the Plaintiff exclusively.
• In November, 1977, the Plaintiff learnt that the Defendant had begun marketing a vanishing cream in cartons and tubes which are a colourable imitation of the Plaintiff cartons and tubes which is a malafide act of passing off of the Defendant’s cream as those of the Plaintiff.
• Defendant started selling ‘Cosmo Turmeric Vanishing Cream’ in Nov. 1977, that they are using their own descriptive words as well as floral design giving their address on the carton and tube along with manufacturing license and excise license number and also the retail price.
• Trade marks ‘VICC0’ and ‘COSMO’ are different visually as well as phonetically and no mistake is possible while purchasing the vanishing cream either of the Plaintiff or of the Defendant.
Plaintiff’s claim passing off by the Defendant of it’s product as and for the product of the Plaintiff on the basis of copy of the distinctive get-up and colour scheme of the tubes and the cartons by them. The Defendant is not entitled to represent it’s goods as being the goods of the Plaintiff. The two marks ‘Vicco’ and ‘Cosmo’ used by the Plaintiff and Defendant, respectively are no doubt different and the mark ‘Cosmo’, by itself is not likely to deceive but the entire get-up and the colour scheme of the tube and the carton adopted by the Plaintiff and the Defendant are identical in every detail and are likely to confuse and deceive the customer easily. The get-up and the colour scheme of the Plaintiff adopted in every detail by the Defendant for their tube and carton cannot be said to have been adopted by the Defendant unintentionally.
The Defendant was injuncted from using a deceptively similar colour packaging as that of the Plaintiff.