Grm Foodkraft Pvt Ltd And Anr vs Ks Agro Impex And Anr.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 29 May, 2026
+ CS(COMM) 637/2024
GRM FOODKRAFT PVT LTD AND ANR .....Plaintiffs
Through: Mr. J. Sai Deepak, Senior Advocate
with Mr. Utkarsh Joshi, Ms. Sudarshana
Bandyopadhyay, Mr. Vinay Thakur and Mr.
Abhishek, Advocates.

versus
KS AGRO IMPEX AND ANR. .....Defendants
Through: Mr. Chander M. Lall, Senior
Advocate with Mr. Ankur Sangal, Mr. Ankit
Arvind, Mr. Shaurya Pandey and Ms. Ananya
Mehan, Advocates for D-1.

CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH

JUDGEMENT
JYOTI SINGH, J.
I.A. 35064/2024 (u/O XXXIX Rules 1 and 2 CPC, filed by Plaintiff) and
I.A. 40114/2024 (u/O XXXIX Rule 4 CPC, filed by Defendant No. 1)
1. This judgment will dispose of an application filed by the Plaintiffs
under Order XXXIX Rules 1 and 2 CPC and an application under Order
XXXIX Rule 4 CPC filed on behalf of Defendant No.1.
2. To the extent necessary, the case set up by the Plaintiffs is that
Plaintiff No.1 is a wholly owned subsidiary of Plaintiff No.2 and was
incorporated on 07.07.2020 and Plaintiff No.2 is an entity registered under
Companies Act, 1956 and was incorporated in 1995. In 1974, Plaintiffs’
predecessors commenced business of rice milling and processing as a family
business by the name of Garg Rice & General Mills. Between 1974-1979,
Signature Not Verified
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they established the first rice milling plant in Panipat, Haryana and during
this time they were only engaged in sale of rice in the domestic market.
Another milling plant was set up in 1980 and later in 1988, they commenced
their international business with export to Saudi Arabia and other middle
eastern countries. By 2024, Plaintiff No.2 had expanded its market presence
to encompass more than 38 countries, thereby attaining recognition of being
among the top basmati rice exporters from India.
3. It is stated that Plaintiffs’ products earned recognition and
certification from prominent global associations for excellence in food
safety, packaging, storage and distribution and their products are certified
under Good Manufacturing Practice and Hazard Analysis Critical Control
Point standards, ensuring that rigorous protocols are followed throughout the
manufacturing process to guarantee safety and quality of its offerings.
Plaintiffs’ goodwill and reputation, both internationally and in India, is
established by sales turnover for financial years 2020-2021 to 2022-2023, as
follows:-
Sales In India of Plaintiff No.1:-

International Sales of Plaintiff No.2:-

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4. It is stated that in 2020, Plaintiff No.1 was set up as a wholly owned
subsidiary of Plaintiff No.2 to specifically focus on domestic market and it
adopted the house mark ‘10X’ with individual sub-brands/trademarks for
each product appearing in conjunction with 10X on the product packaging.
In 2021, Plaintiff No.1 launched ‘Golden Sella Basmati Rice’ under the
trademark and sub-brand ‘Zarda King’. Plaintiff No.1’s product range of
rice includes steam rice and long grain rice, which are generally consumed
on daily basis as also ‘cream sella’ and ‘golden sella’ which are premium
brands and priced higher than the daily consumable varieties. Golden Sella
Basmati Rice was launched under the mark
and sold in different
sized packaging with a special and aesthetically designed trade dress having
unique features such as: (i) green and gold colour scheme; (ii) letters
inscribed in special gold font and a style resembling the Urdu/Arabic script;
(iii) placement of mark ‘Zarda King’ as a the sub-brand in the centre in a
uniquely stylised/designed golden font in two lines ; (iv) design of hanging
lanterns and stars on the upper part of the packaging in golden colour; (v) a
crescent-shaped moon with a star placed in the top centre of the packaging;
(vi) image of a building resembling Arabic architecture with minarets; and
(vi) image of a plate of pulao at the bottom of the packaging, as follows:-

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5. It is stated in the plaint that on 04.11.2022, trademark (device)
under application no. 5669692 and trademark (device)

under application no. 5669694 were assigned by Mr. Dhruv Kumar Singhal
in favour of Plaintiff No.1 vide Assignment Deeds dated 06.08.2023.
Plaintiffs achieved immediate success in the product Golden Sella Basmati
Rice under the specially designed unique packaging and earned revenues
exceeding Rs.86 crores in three years from 2021, which together with
expenses incurred by Plaintiff No.1 in promoting and advertising the product
as follows, reflect not only the immense goodwill and reputation garnered in
short span of time but are also pointers to the distinctiveness of the
packaging/trade dress and its association in the minds of public with the
Plaintiffs alone:-

6. In the first week of July, 2024, Plaintiff No.1 learnt through trade
channels that Defendant No.1 is a producer and seller of rice and was selling
Golden Sella Basmati Rice and when the product was purchased from the
market, it was discovered that the packaging was deceptively similar to
Plaintiff No.1’s packaging of Golden Sella Basmati Rice inasmuch as
almost every essential element, colour scheme, font stylization and even the
word ‘Zarda’, prominently placed on Plaintiffs’ packaging, were copied with
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an intent to encash on the formidable goodwill and reputation of the
Plaintiffs. It was also found that Defendant No.2 manufactures and supplies
product packaging to many entities including Defendant No.1 and was also
supplying the impugned packaging to Defendant No.1. After carrying out an
extensive survey, Plaintiffs filed the present suit and by an ex parte ad
interim order dated 01.08.2024, Court restrained the Defendants and all
others acting on their behalf from selling, offering for sale and advertising
their product in impugned trade dress/packaging
, which in prima
facie view of the Court was confusingly or deceptively similar to the trade
dress/packaging of the Plaintiffs and/or variants thereof. Court granted
liberty to Defendant No.1 to carry on its business by using different trade
dress/packaging, which was distinct and not deceptively similar to that of
the Plaintiffs. Defendant No.1 thereafter filed an application under Order
XXXIX Rule 4 CPC for vacation of ex parte ad interim injunction in which
notice was issued on 04.10.2024. Be it noted that during the pendency of the
proceedings, Defendant No.1 had proposed revised packaging, but the
matter could not be settled owing to Plaintiffs’ perception that they were
also deceptively similar and consumers will continue to be confused.
7. Learned Senior Counsel for the Plaintiffs argued that Plaintiffs
designed and adopted a special packaging in 2021 with a unique trade dress
to sell the Golden Sella Basmati Rice under the sub-brand Zarda King and
have been continuously, extensively and uninterruptedly using the same ever
since. Defendant No.1 dishonestly and deliberately adopted the impugned
packaging/trade dress in which it was selling identical product i.e Golden
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Sella Basmati Rice and which is deceptively and confusingly similar to
Plaintiffs’ packaging/trade dress. The adoption is clearly mala fide with an
intent to mispresent to the public that Defendant No.1’s product has an
association with the Plaintiffs and thereby encash on the immense goodwill
and reputation garnered by the Plaintiff in a short period through sale of rice
in the unique packaging and this causes irreparable harm and damage to
Plaintiffs’ goodwill and reputation. Golden Sella Basmati Rice sold by the
Plaintiffs under the distinctive packaging has earned revenues exceeding
Rs.86 crores in three years from 2021, the year in which it was launched and
Plaintiffs have expended a substantial sum of over Rs.8 crores in promoting
and advertising the product. Celebrities such as Mr. Salman Khan and Ms.
Saina Nehwal have endorsed the brand and its visibility extends to hoardings
and YouTube videos across several markets and creates a memory recall.
Plaintiffs have placed on record CA Certificate, investment filings, listings
on IndiaMart, sales invoices etc. which corroborate the immense goodwill
and reputation in the distinct packaging. Thus, all the three ingredients of
passing off i.e. goodwill and reputation, misrepresentation and irreparable
harm and damage to the goodwill and reputation are satisfied in the present
case and the ex parte ad interim injunction order deserves to be confirmed.
8. It was further urged that Defendant No.1’s Golden Sella Basmati Rice
packaging/trade dress is a near replica of Plaintiffs’ trade dress and almost
all essential and prominent features have been copied to confuse the
consumers, such as: (i) green and gold colour scheme; (ii) stylization of
english letters in gold to resemble the Urdu/Arabic script; (iii) word ‘Zarda’
in same golden font and style albeit with a suffix ‘Special’; (iv) hanging
lanterns and stars at the top of the packaging in golden colour; (v) below the
brand name ‘Zarda’ is written in Urdu/Arabic script; (vi) a monochromatic
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picture depicting a traditional Arabic building with four minarets at the
lower end of the packaging in golden colour; and (viii) picture showcasing a
plate with pulao at the bottom of the packaging. In any event, the test is not
to see individual elements but one of ‘overall impression’ and on this
touchstone when rival trade dresses are compared, they are deceptively
similar and there is every likelihood of confusion in the minds of target
demographic. The similarities in the impugned packaging leave no doubt
that the intent behind copying was to take unfair advantage of and encash on
the goodwill of the Plaintiffs for unlawful monetary gains by
misrepresenting to the public that there is some association/affiliation with
the Plaintiffs. This amounts to passing off and infringement of the copyright
which Plaintiffs hold in the original artistic work in the trade dress.
9. It was further argued that a market survey carried out by the Plaintiffs
among 208 persons in 7 cities, comprising 109 street hawkers, 75 rice
retailers and 24 rice distributors, showed that 81% were aware of Plaintiffs’
packaging and 85% could identify the same from a distance. 52% persons
identified Plaintiffs’ packaging based on colour while 28% identified basis
the packaging and 18% identified on the basis of the design. When the
product of Defendant No.1 was shown, 10% associated the same with the
Plaintiffs. The survey indicates that the green colour combination and the
unique design of the packaging have a great bearing on the recall value of
the product in the eyes of the consumers.
10. It was urged that it cannot be overlooked that the target audience of
the product in question primarily comprises of street hawkers, rice
distributors and rice retailers in Tier-II and Tier-III cities/towns and not all
customers/consumers will be discerning. Likelihood of confusion gets
enhanced owing to rival products being identical; trade channels and
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consumers being common; and packaging with strikingly identical green
background and green and gold combination with Zarda inscribed on it
being often stacked together on the same shelves in the shops/stores. In fact,
use of word ‘Zarda’ adds to the likelihood of confusion amongst potential
consumers who will be led into believing that the impugned product is
another variant from the Plaintiffs and gives strength to Plaintiffs’ stand that
Defendant No.1 intends to pass off its goods as those of the Plaintiffs. The
true test of passing off is the existence of similarities and not dissimilarities
since confusion originates from similarities in the minds of persons with
average intelligence and imperfect recollection, as held in Ruston &
Hornsby Ltd. v. Zamindara Engineering Co., (1969) 2 SCC 727 and
Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 .
It was emphasised that in case of edible products such as rice greater
sensitivity is required and the threshold of deceptive similarity is far lower.
[Dominos IP Holder LLC and Another v. Dominick Pizza and Another,
2023 SCC OnLine Del 6135; Ferrero SPA and Others v. M.B. Enterprises,
2025 SCC OnLine Del 5105; and Capital Foods Private Limited v. Sankalp
Recreation Private Limited and Ors., MANU/DEOR/ 75775/2025].
11. Placing heavy reliance on the judgment in Parle Products (P) Ltd. v.
J.P. and Co., Mysore, (1972) 1 SCC 618, it was argued that the instant case
fits into the facts of the said case where the Supreme Court ruled that
Defendants’ wrapper was deceptively similar to Plaintiffs, since the rival
packets were of the same size; colour scheme was almost similar; and the
rival wrappers depicted a girl with one-arm raised and carrying something
in the other, surrounded by cows and hens or chicken in the background.
The words ‘Gluco Biscuits’ in one and ‘Glucose Biscuits’ in the other
occupied prominent places at the top with a good deal of the similarity
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between the two writings. The Supreme Court observed that if one was not
careful enough to note the peculiar features of the wrappers on Plaintiffs’
goods, he might easily mistake Defendants’ wrapper for the Plaintiffs if
shown to him some time after he had seen one of the Plaintiffs’. Reliance
was also placed on the judgment of the Division Bench of this Court in
Under Armour Inc v. Anish Agarwal and Another, 2025 SCC OnLine Del
3784 for the proposition that similarity of rival trade dresses will lead to
initial interest confusion and of Co-ordinate Bench in Marico Limited v. Mr.
Mukesh Kumar and Others, 2018 SCC OnLine Del 10823, where it was
held that the trade dress was novel and distinctive and Plaintiff could claim
exclusivity over several elements as a whole such as coconut tree, broken
coconut device, a flag with a dark blue background, descriptions in white
font including blue colour of the bottle. Emphasising on the proposition that
if the dominant colour scheme is copied, it is sufficient to make out a case of
passing off, reliance was placed on the judgments of this Court in Mondelez
India Foods Pvt. Ltd. and Another v. Neeraj Food Products, 2022 SCC
OnLine Del 2199 and Colgate Palmolive Company & Another v. Anchor
Health and Beauty Care Pvt. Ltd., 2003 SCC OnLine Del 1005 .
12. It was contended that Defendant No.1’s stand that the word Zarda is
generic or descriptive or common to trade, is misplaced. Zarda is not
commonly understood as reference to a sweet dish and does not ordinarily
translate to Golden Sella Basmati Rice, which is the product in question here
and therefore, in the context of the present product, the mark is at the highest
suggestive and hence, inherently distinctive. Assuming the word Zarda is
generic/descriptive, this argument cannot rescue Defendant No.1 in the
context of the present packaging, which is an imitation of Plaintiffs’
packaging and as a part of overall plan to copy and pass off its goods as
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those of the Plaintiffs. As for common to trade, it is trite that Plaintiffs are
not required to chase and sue every third party using the word Zarda,
assuming this position is factually correct. None of the documents filed by
Defendant No.1 show any party using the word Zarda with a packaging
deceptively similar as in the instant case with same colour combination and
elements. Defendant No.1 has not only copied the word Zarda but has
dishonesty and cleverly laboured hard to add the suffix ‘Special’ to create a
false illusion of distinction.
13. Taking the Court through the comparative table of the rival trade
dresses/packaging, it was asserted that the impugned packaging is a near
replica of Plaintiffs’ packaging and thus there is no merit in the defence
raised by Defendant No.1 that owing to use of house mark ‘DOUBLE
CHABI’, on its packaging there is no scope of confusion amongst members
of the public. In products such as rice the first point of decision making is
the visual impression of the colour scheme, getup and layout rather than
textual content and for ready reference, comparative of the rival packaging
is as follows:-

14. Learned Senior Counsel for Defendant No.1 submitted that said
Defendant was established as a partnership firm in 2016 and in July, 2024,
two of its partners applied for registration of a label with ‘Double Chabi
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Zarda Special’ for Basmati Rice and began using the same. Defendant No.1
is a reputed business entity and is selling over 50 kinds of rice products
under the brand Double Chabi and is also exporting the same to over 25
countries. Plaintiffs’ allegations of infringement of copyright and passing off
are frivolous and without merit, inasmuch as Plaintiffs cannot assert any
exclusive right or monopoly on individual elements of the trade dress such
as green and gold colours, English letters, hanging stars and lanterns,
crescent shaped moon and plate of pulao etc. It is a settled law that colours
and colour combinations are not inherently distinctive and distinctiveness
has to be established by long use and voluminous sales, which Plaintiffs are
unable to substantiate. Plaintiffs do not have any registration in the trade
dress or the trademark Zarda King and plaint lacks any assertion that
Plaintiff No.1 is the ‘Author’ of the artistic work in the packaging and
consequently, copyright holder. Reliance was placed on the judgment of this
Court in Britannia Industries Ltd. v. ITC Limited, 2017 SCC OnLine Del
7391, to bring home the point that colours and colour combinations are not
inherently distinctive and to succeed in a claim of passing off,
distinctiveness has to be established by showing long and consistent user
and that members of public associate the colour and/or combination thereof
with the Plaintiffs alone, which they have failed to establish, even prima
facie .
15. It was argued that the word Zarda is non-distinctive and means a
traditional boiled sweet rice dish made from milk, saffron, sugar and food
colouring. The word Zarda comes from the Urdu word Zard which means
‘yellow’ and which is why Zarda is often a very bright hue of yellow or
orange. Many sellers use the word Zarda to describe a particular type of rice
and also in the same font and documents to this effect have been filed. Zarda
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is written in English on the impugned packaging in a particular font
resembling the Urdu script only because Zarda is a dish originating from the
Mughals and not with the objective of imitating or copying Plaintiffs’ trade
dress and moreover, Plaintiffs cannot claim any independent or exclusive
right over the word Zarda, much less in the stylization or font as they do not
have registration in the word Zarda and significantly, at the time of filing the
trademark application for the device mark
, disclaimer was given
that no right will be claimed over the word Zarda, the same being a generic
word. In any event, reading of the plaint and the reliefs sought shows that
Plaintiffs have not even asserted any right on the word Zarda and hence, any
claim of dishonest user by Defendant No.1 is misplaced in law. Reliance
was placed on the judgments in Sanjha Chulha v. Sanjha Chulha and
Others, 2022 SCC OnLine Del 3616 and Rhizome Distilleries P. Ltd. and
Others v. Pernod Ricard S.A. France and Others, 2009 SCC OnLine Del
3346 .
16. It was also argued that there is no similarity, leave alone deceptive
similarity, between the rival trade dresses. Plaintiffs’ trade dress has a
packaging with glossy finish without polka dots, while Defendant No.1’s
packaging is dark green in colour with white polka dots in the background
and a matte finish. Importantly, Plaintiffs use their house mark 10X
prominently on the packaging while Defendant No.1 uses its house mark
DOUBLE CHABI prominently on its packaging and this crucial difference
is sufficient to discard any argument of customer confusion. Moreover,
Plaintiffs’ packaging is completely sealed from the sides with no foldable
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ends while packaging of Defendant No.1 has foldable sides with DOUBLE
CHABI logo printed on both sides. Plaintiffs’ packaging has an image of a
pulao dish in a plate towards the left of the packaging which is very different
from the placement in the centre in the impugned packaging. Another
crucial distinction is the prominent red colour strip in the lower part of
Defendant No.1’s packaging and the blue/purple background in Plaintiffs’,
with images of a building with minarets and floral imprints. While
examining deceptive similarity, Court cannot completely disregard the
points of dissimilarity as irrelevant. Dissimilarities, if sufficient, can obviate
possibility of confusion in a given case as held in Britannia Industries Ltd.
v. ITC Ltd. and Others, 2021 SCC OnLine Del 1489 and Carlsberg India
Pvt. Ltd. v. Radico Khaitan Ltd., 2011 SCC OnLine Del 5497 .
17. It was emphasised that in order to succeed in a claim for passing off,
Plaintiffs have to establish all three ingredients: goodwill and reputation,
misrepresentation and damage, however, Plaintiffs have failed to place any
material on record which establishes their goodwill and reputation in their
trade dress/packaging and/or that it is distinctly associated with them in the
minds of the public. [Ref.: M.L. Brothers LLP v. Uma Impact Private
Limited and Another, 2023 SCC OnLine Del 1492]. In other words, the
argument was that Plaintiffs have only shown sales turnover and
advertisement expenses in respect of the entire business under the mark 10X
and no separate figures are forthcoming related to sale of Golden Sella
Basmati Rice under the sub-brand Zarda King and the packaging/trade dress,
claimed to be unique. Plaintiffs have also failed to make out a case of
misrepresentation and/or dishonest use or adoption by Defendant No.1 and
per contra , Defendant No.1 has established its bona fides by showing that it
has consistently used its house mark DOUBLE CHABI on the impugned
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packaging, which clearly makes the impugned packaging distinct and easily
identifiable by any customer of average intelligence and imperfect
recollection. [Ref.: Intex Technologies (India) Ltd. & Anr. v. M/s AZ Tech
(India) & Another, 2017 SCC OnLine Del 7392]. Plaintiffs have thus failed
in discharging the onus of showing that Defendant No.1 is passing off its
product using allegedly deceptively similar packaging. The survey report
filed by the Plaintiffs is a self-serving document with no credibility attached
to it. Moreover, rival products are sold in 30 Kgs bags and a consumer
buying a 30 Kg bag of rice would be a discerning consumer and there would
be no likelihood of confusion. [Ref.: Pernod Ricard India Private Limited
and Another v. Karanveer Singh Chhabra, 2025 SCC OnLine SC 1701].
Plaintiffs have also failed to prove the third ingredient for passing off i.e.
injury or damage. No material on record suggests actual confusion,
complaints and/or loss of profit. In any case, it is settled that if Defendant is
able to show any added matter which is sufficient to dispel confusion, case
of passing off must fail. [Kaviraj Pandit Durga Dutt Sharma v. Navaratna
Pharmaceutical Laboratories, 1964 SCC OnLine SC 14].
18. Heard learned Senior Counsels for the parties and examined their rival
submissions.
19. As per the case set up by the Plaintiffs, they launched the product
Golden Sella Basmati Rice under the 10X mark with sub-brand Zarda King
in a distinct and unique packaging/trade dress and there is no dispute that the
mark of the Plaintiffs
is not registered and the application is
pending albeit there is a dispute between the parties as to the disclaimer
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given before the Registrar of Trade Marks with respect to the mark Zarda.
Plaintiffs’ claim of passing off and copyright infringement essentially
revolves on the packaging/trade dress in which they sell this special variety
of basmati rice. It is asseverated that the packaging was specially and
aesthetically designed and is unique, owing to the green and gold colour
scheme; exclusive gold lettering in English designed with unusual
font/stylization to resemble Urdu/Arabic script; prominent placement of the
mark Zarda King in the centre in uniquely styled and designed golden font
in two lines; design of hanging stars and lanterns at the top of the packaging
in golden colour; crescent shaped moon with a star placed near the top
centre of the pack; and a depiction of a pulao plate at the bottom of the
packaging with minarets and floral pattern etc. This unique trade dress,
Plaintiffs claim, qualifies both as trade dress protected under the Trade
Marks Act, 1999 and an original artistic work within the meaning of the
Copyright Act, 1957.
20. Contrary to the stand of Defendant No.1, Plaintiffs claim to have
placed on record documents showing sales turnover from 01.10.2021 to the
end of financial year 2023-24 reflecting sales exceeding Rs.86.16 crores in
respect of Golden Sella Basmati Rice sold under the unique packaging with
10X mark and sub-brand Zarda King as also expenditure of about 8 crores
incurred on promotion and marketing and basis the revenue earned,
expenses incurred, social media presence, brand endorsements by celebrities
and listings on third party websites such as IndiaMart etc., it is asserted that
Plaintiffs have garnered immense goodwill and reputation and their unique
packaging/trade dress has become distinctive and has a recall value in the
minds of the public. Case of passing off is set up against Defendant No.1 by
pleading and arguing that it has adopted a deceptively similar/nearly
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identical packaging/trade dress for identical product i.e. Golden Sella
Basmati Rice and comparison of the rival packaging will demonstrate that
every effort has been made by Defendant No.1 to come as close as possible
to the Plaintiffs by copying almost all prominent elements, with a view to
misrepresent to the public that its rice emanates from the house of the
Plaintiffs or has some association with them and this is causing irreparable
damage to the Plaintiffs’ goodwill and reputation apart from financial loss. It
was urged that the test of comparison is the ‘overall impression’ and on
applying this test and finding that there was dishonest copying by Defendant
No.1 of all essential elements, ex parte ad interim injunction was granted by
the Court, which deserves to be made absolute till the disposal of the suit
and Defendant No.1’s application for vacation deserves to be dismissed.
21. Defendant No.1, on the other hand, seeks vacation of the ex parte
injunction order by highlighting what it perceives are the stark differences in
the rival packaging/trade dresses and asserting that no party can claim
proprietary rights or monopoly in colours, colour combinations, individual
elements such as stars, lanterns, images of dishes such as pulao or even in
the word Zarda, which is generic, descriptive and common to trade and in
which Plaintiffs do not have registration. Defendant No.1 on the very
fundamental level questions and contests the allegation of deceptive
similarity of its packaging/trade dress. Defendant No.1 also strenuously
refutes the allegation of mala fide intent to copy/imitate the trade dress of
the Plaintiffs and in support places heavy reliance on prominent display of
its house mark DOUBLE CHABI on the packaging as a strong indicator to
the members of public and members of trade that its product has no
association/affiliation with Plaintiffs’ brand and product. Goodwill and
reputation claimed by the Plaintiffs, an essential ingredient of passing off
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action, is opposed by contending that the documents showing sales/expenses
are in respect of entire business and not specific to sales, if any, under the
packaging which is the subject matter of this suit and hence, the relief
sought must fail on this point alone.
22. Passing off is a tortious act and the classic trinity test required to be
passed is goodwill and reputation; misrepresentation; and damage/injury.
The House of Lords in Reckitt & Colman Products Ltd. Respondents and
Borden Inc. and Others Appellants, [1990] 1 WLR 491 , observed that
passing off is aimed at protecting the goodwill associated with the mark and
relevant observations are as follows:-
“The basic underlying principle of such an action was stated in 1842 by
Lord Langdale M.R. in Perry v. Truefitt (1842) 6 Beav. 66, 73 to be: “A
man is not to sell his own goods under the pretence that they are the goods
of another man ….” Accordingly, a misrepresentation achieving such a
result is actionable because it constitutes an invasion of proprietary rights
vested in the plaintiff. However, it is a prerequisite of any successful
passing off action that the plaintiff's goods have acquired a reputation in
the market and are known by some distinguishing feature. It is also a
prerequisite that the misrepresentation has deceived or is likely to deceive
and that the plaintiff is likely to suffer damage by such deception. Mere
confusion which does not lead to a sale is not sufficient. Thus, if a
customer asks for a tin of black shoe polish without specifying any brand
and is offered the product of A which he mistakenly believes to be that of
B, he may be confused as to what he has got but he has not been deceived
into getting it. Misrepresentation has played no part in his purchase.”

23. In Laxmikant V. Patel v. Chetanbhai Shah and Another, (2002) 3
SCC 65, the Supreme Court reiterated the three essential ingredients of
passing off and further held that fraud is not a necessary element of the right
of action and likelihood of damage is enough and if shown, it is usual and
rather essential, to seek an injunction. Essentials of an action of passing off
and the reason why protection in such cases is necessary has been the
subject matter of several decisions but to avoid prolixity, I may refer to the
following passages from the judgment of this Court in Dabur India Limited
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v. Shree Baidyanath Ayurved Bhawan Pvt. Ltd., 2012 SCC OnLine Del
3332 :-
“42. As mentioned earlier, it has been held in various decisions that no
man is entitled to represent his goods as being the goods of another which
such representation is made by the use of any mark, device, colous
combinations or other means. Such person or trader cannot be permitted
to make a false representation to the purchaser of his goods because it
constitutes an invasion of proprietary rights vested in the rightful owner
pre-condition of any successful passing off action is that mark in question
must have acquired a reputation in the market and are known by some
distinguishing feature. In case, prima facie, proves a tangible threat by the
defendant to trade in the same manner even incorrectly that would be
likely to give rise to deception or confusion.
43. The following are the essential characteristics of an action of passing
off:—
(a) In Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., 1980
RPC 31, Lord Diplock stated the essential characteristics of a passing
off action as under:
“(1) misrepresentation, (2) made by a person in the course of
trade, (3) to prospective customers of his or ultimate consumers of
goods or services supplied by him (4) which is calculated to injure
the business or goodwill of another trader (in the sense that this is
a reasonably forseable consequence and (5) which causes actual
damage to a business or goodwill of the trader by whom the action
is brought or (in a quia timet action) will probably do so.”
(b) The essentials of passing off action in Halsbury's Laws of
rd
England Vol. 38 (3 Edition) para 998 as given below are worth
noting:
“998. Essentials of the cause of action
The plaintiff must prove that the disputed name, mark, sign or get
up has become distinctive of his goods in the sense that by the use
of his name or mark, etc in relation to goods they are regarded, by
a substantial number of members of the public or in the trade, as
coming from a particular source, known or unknown; it is not
necessary that the name of the plaintiff's firm should be
known…..The plaintiff must further prove that the defendant's use
of name or mark was likely or calculated to deceive, and thus cause
confusion and injury, actual or probable, to the goodwill and the
plaintiff's business, as for example, by depriving him of the profit
that he might have had by selling the goods which ex hypothesi, the
purchaser intended to buy. Thus, the cause of action involves a
combination of distinctiveness of the plaintiff's name or mark and
an injurious use by the defendant of the name or mark or a similar
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name or mark, sign, picture or get-up does or does not amount to
passing off is in substance a question of evidence; the question
whether the matter complained of is likely to deceive is a question
for the Court.”
44. The judgment passed in the case of Laxmikant Patel v. Chetanbhai
Shah, reported in (2002) 3 SCC 65, the relevant para-10 of which reads as
under:—
“The law does not permit any one to carry on his business in such a
way as would persuade the customers or clients in believing that his
goods or services belonging to someone else are his or are associated
therewith. It does not matter whether the latter person does so
fraudulently or otherwise. The reasons are two. Firstly, honesty and
fair play are, and ought to be, the basic policies in the world of
business. Secondly, when a person adopts or intends to adopt a name
in connection with his business or services which already belongs to
someone else it results in confusion and has propensity of diverting
the customers and clients of someone else to himself and thereby
resulting in injury.”
24. Coming to the instant case, the action of passing off by the Plaintiffs
pertains to the rival packaging/trade dress for identical products i.e. Golden
Sella Basmati Rice. Plaintiffs claim that all elements of their packaging from
colour/colour combination to individual elements such as image of pulao
dish, hanging lanterns and stars design, font/colour/style of word Zarda,
have been copied by Defendant No.1. Broadly understood, the points of
opposition raised by Defendant No.1 are: no deceptive similarity in the rival
trade dresses; no proprietary right or monopoly can be claimed on
colours/colour combinations or generic elements like stars, moon, lanterns,
minarets, dishes etc.; word Zarda is generic/descriptive/common to trade;
failure of Plaintiffs to establish distinctiveness in the trade dress and/or
goodwill and reputation; and prominent display of house mark DOUBLE
CHABI on the impugned packaging by Defendant No.1 which leaves no
scope for confusion.
25. To analyse the respective stands, first things first: the question is
whether there is any identity/deceptive similarity between the rival
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packaging/trade dresses. If the answer to this question is ‘no’, further
determination is not warranted. Upon perusal of the competing packaging, I
find striking similarities in the two, which outweigh the minor
dissimilarities. Plaintiffs’ packaging
is a combination of
special/unique elements such as: green and gold colour scheme; exclusive
gold lettering in English, aesthetically designed in an unusual font/style to
resemble the Urdu/Arabic script; prominent placement of the sub-brand
‘Zarda King’ in the centre in uniquely styled and designed golden font;
design of hanging stars and lanterns at the top of the packaging in golden
colour; crescent shaped moon with a star placed near the centre on top; and a
depiction of a pulao plate at the bottom of the packaging with minarets and
floral pattern etc. Compared with this, Defendant No.1’s impugned
packaging/trade dress
with colour combination and elements such
as: (i) green and gold colour scheme; (ii) gold lettering in English
resembling the Urdu/Arabic script; (iii) word ‘Zarda’ with suffix ‘Special’ in
golden and stylized font with diamond shaped dots unevenly distributed
between the words ‘Zarda Special’; (v) design of hanging stars and lanterns
at the top of the packaging in golden colour; (vi) ‘Zarda’ written in
Urdu/Arabic script; (vii) imagery of pulao dish in the lower half of the
packaging, is deceptively similar. Defendant No.1 has visibly copied all
essential elements to come as close as possible to Plaintiffs’ trade dress.
26. In Parle Products (supra), the dispute before the Supreme Court
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centred around biscuit wrappers. Parle’s wrapper for ‘Gluco F Biscuit’
featured a farmyard scene with a girl carrying pail of water and in the
background were cows and hens and a farmhouse. Defendant was selling
‘Glucose Biscuits’ in a wrapper depicting a girl holding hay on her head and
carrying a sickle and food and the backdrop was a building. The Supreme
Court held that the test is of ‘overall similarity’ and on this anvil ruled that
Defendants’ wrapper was deceptively similar to Parle’s, observing that
anyone who had a look at one of the packets today may easily mistake the
other if shown on another day as being the same article which he had seen
the other day, as after all an ordinary purchaser is not gifted with the powers
of observation of Sherlock Holmes. Relevant paragraphs from the judgment
are as follows:-
“9. It is, therefore, clear that in order to come to the conclusion whether
one mark is deceptively similar to another, the broad and essential
features of the two are to be considered. They should not be placed side by
side to find out if there are any differences in the design and if so, whether
they are of such character as to prevent one design from being mistaken
for the other. It would be enough if the impugned mark bears such an
overall similarity to the registered mark as would be likely to mislead a
person usually dealing with one to accept the other if offered to him. In
this case we find that the packets are practically of the same size, the
colour scheme of the two wrappers is almost the same; the design on both
though not identical bears such a close resemblance that one can essily be
mistaken for the other. The essential features of both are that there is a
girl with one arm raised and carrying something in the other with a cow
or cows near her and hens or chickens in the foreground. In the
background there is a farm house with a fence. The word “Gluco
Biscuits” in one and “Glucose Biscuits” on the other occupy a prominent
place at the top with a good deal of similarity between the two writings.
Anyone in our opinion who has a look at one of the packets today may
easily mistake the other if shown on another day as being the same article
which he had seen before. If one was not careful enough to note the
peculiar features of the wrapper on the plaintiffs' goods, he might easily
mistake the defendants' wrapper for the plaintiffs' if shown to him some
time after he had seen the plaintiffs'. After all, an ordinary purchaser is
not gifted with the powers of observation of a Sherlock Homes. We have
therefore no doubt that the defendants' wrapper is deceptively similar to
the plaintiffs' which was registered. We do not think it necessary to refer to
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the decisions referred to at the bar as in our view each case will have to be
judged on its own features and it would be of no use to note on how many
points there was similarity and in how many others there was absence of
it.
10. It was argued before us that as both the trial court and the High Court
had come to the same conclusion namely, that the defendants' wrapper
was not deceptively similar to the plaintiffs', the finding is one of fact
which should not be disturbed by this Court. Normally, no doubt this
Court does not disturb a concurrent finding of fact. But where, as here we
find that the finding was arrived at not on proper consideration of the law
on the subject it is our duty to set the same aside on appeal.
11. In the result, we hold that the defendant had infringed the registered
trade mark of the plaintiff and the suit of the plaintiff should be decreed
and an injunction granted restraining the defendant respondent from
selling or using in any manner whatsoever biscuits in wrappers similar in
appearance to the registered trade mark of the plaintiffs on their packets.
The appellants will be entitled to their costs throughout.”


27. It is thus settled that the test is ‘overall impression and similarity’ and
Courts must give greater attention to points of similarities than
dissimilarities, especially when one sees dishonesty. [Munday v. Carey, 22
RPC 273] . In Cadila Health (supra) , the Supreme Court held that what has
to be seen in an action of passing off is similarity between the marks and
determine if there is likelihood of confusion or deception and not differences
in essential features as products are purchased by villagers and townsfolk,
literate as well as illiterate and the question has to be approached from the
point of a man with average intelligence and imperfect recollection. In
Cadbury India Ltd. & Ors. v. Neeraj Food Products, 2007 SCC OnLine
Del 841, Plaintiff was aggrieved by Defendant’s adoption of a trade dress on
the pillow pack which it perceived was deceptively similar to its packaging.
Court found that the rival pillow packs were of the similar size and every
essential feature of Plaintiff’s pillow pack was found in the pack of the
Defendant, except that one displayed the manufacturer as Cadbury and
product as GEMS and other displayed the manufacturer as Neeraj and
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product as JAMES BOND and held that Plaintiff had made out a prima facie
case of passing off by the Defendant. Relevant passages from the judgment
are as follows:-
“24. The case of the plaintiff so far as its complaint against the defendant
in respect of the infringement on account of the copying of essential
features of the plaintiff's packaging as also passing off its goods as those
of the plaintiff requires a comparison of the packaging of the defendant
against the plaintiffs pillow pack.
The packaging of the defendant is not identical to that of the plaintiff.
As per the law laid down in Kaviraj Pandit Durga Dutt
Sharma v. Navratna Pharmaceutical Laboratories (supra), the tests for the
infringement action and dishonest passing off claim would remain the
same.
25. The plaintiffs pillow packs which have been placed on record have a
blue background with ‘GEMS’ written in bold white italicized letters in a
script which is not uniform. The word ‘GEMS’ is written against a
chocolate brown background with a blue outline in an oval formation in
the centre of the pack. An impression of small diversely coloured round
chocolate button like tablets have been strewn around the word ‘GEMS’. It
has been pointed out that the chocolate tablet impressions are in fact an
image of the products which are contained inside the packaging which are
of identical round shape and form and have diverse and attractive colour
coatings over the chocolate inside. The colour combination of the tablets
as contained in the pillow pack and which has been printed on the pillow
pack are red, yellow, green and mauve. The plaintiff has displayed full
tablets as well as half cut tablets to represent the chocolate which is
contained therein. The visual impression which is created on the pillow
pack and the packaging of the plaintiff is that of an explosion of chocolate
tablets in the middle and the tablets flying out from its centre. White lines
around the brown oval in the middle add to the creation of such a
impression.
26. The defendant's pillow pack is not only of the same size as that of the
plaintiff but is in the same blue background as that of the plaintiff. The
plaintiffs pack has a brown oval at the centre, while the defendant has
placed brown colour in a diamond shape. The plaintiff has displayed the
origin of the product that is the name of the manufacturer as Cadbury's on
the top left corner of the packet. The defendant has placed its name
identically at the top left corner. The brown oval on the plaintiffs pack is
bordered by a purple oval while the brown diamond on the defendant
pillow pack is also bordered with the purple border. The plaintiff has
written the word ‘GEMS’ in white colour. The defendant has used an
identical white for writing ‘JAMES BOND’. Even the scripting is identical.
The plaintiff scripting of the word ‘GEMS’ is not uniform. The defendant
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has also placed ‘JAMES BOND’ in a script which is not uniform. Just as
the plaintiff, the defendant has also created a visual impression of an
explosion in blue colour in the middle with lines emanating from the centre
and tablets flying out therefrom. The colour combination of the tablets is
similar to that of the plaintiffs while the defendant has also placed half
tablets showing the chocolate centres just as those of the plaintiff.
27. From a bare perusal of the two pillow packs, it would appear that the
same are of similar size and that every essential features of the plaintiffs
pillow pack is to be found in the packaging of the product of the defendant.
The only difference which is to be found is in the fact that while the
plaintiff pillows pack displays the manufacturer as Cadbury, the
defendant's displays the manufacturer as Neeraj. While the plaintiff has
displayed the product as ‘GEMS’, the defendant has displayed the same as
‘JAMES BOND’.
28. Thus the essential features of the pillow pack of the plaintiff have been
adopted by the defendant in its packaging. The products are sold in small
pouches or pillow pack of identical size and shape. The concept or idea
which has been conceptualized by the plaintiff of an explosion of chocolate
tablets emanating from the central brown oval circumscribed by the blue
oval have been copied in totality by the defendant. The defendant has also
placed identical multicoloured chocolate tablets as well as displayed half
cut tablets showing chocolate centered in the same manner as have been
displayed by the plaintiff on its packaging.
xxx xxx xxx
31. Holding that it is the points of similarity which have to be given
greater attention to than those of dissimilarity in 22 RPC
273, Munday v. Carey, it was held thus:—
“… where you see dishonesty, then even though the similarity were
less than it is here, you ought, I think, to pay great attention to the
items of similarity, and less to the items of dissimilarity.”
xxx xxx xxx
45. The defendant has adopted a pillow pack which is almost identical to
that of the plaintiff. To a person of even average intelligence and imperfect
recollection, the overall structural and phonetic similarity as also the
similarity of the concept and idea in the two marks is reasonably likely to
cause a confusion between them.”

28. In this context, I may also allude to the judgment of this Court in
Allied Blenders alias Distillers Private Limited v. Hermes Distillery Private
Limited, 2024 SCC OnLine Del 217 , where Plaintiff complained of
similarities in the labels in respect of whiskies. On a comparison of the
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competing labels, Court found similarities which are captured in paragraph
53 of the judgment in terms of background red and white colours, gold line,
lettering, placement of trademarks, outer gold border and insignia and
held that on a first glance the overall appearance of the two labels was
similar and negated the stand of the Defendant that there were
differences which must be considered. Court was of the view that there was
‘smart copying’ and the chart of differences showed extraordinary effort put
by the Defendant in identifying the differences. Relevant passages are as
under:-
“ Analysis and Conclusions
36. The short question that arises in the present application
under Order XXXIX Rule 1 & 2 CPC is whether the use of the
Defendant's label violates the Plaintiff's rights and whether it constitutes
infringement or passing off. The first and foremost factor that needs to be
considered is the comparison between the two labels. A perusal of the
above comparison would show that while the two labels are not identical,
there are some clear elements of similarities between the two. Such
elements includes:—
i) The use of the ribbon like feature in the Plaintiff's and the
Defendant's labels.
ii) The placement of the white window in the red background.
iii) The placement of insignia/coat of arms.
iv) The placement of other descriptive matter.
xxx xxx xxx
39. The test for comparing the above labels, as laid down in several
judgments of the Supreme Court such as in Parle (supra) and S.M.
Dyechem Ltd. (supra) is not one of identity but of similarity. Further,
following the decision of the Supreme Court in Corn Products Refining
Co. v. Shangrila Food Products Ltd. (AIR 1960 SC 142), the plank of
similarity is to be tested from that of a consumer with average intelligence,
imperfect recollection or a hazy recollection. Considering the large-scale
sale of the Plaintiff's products under the ‘OFFICER'S CHOICE’ mark, the
Defendant is obviously aware of the ‘OFFICERS CHOICE’ products and
labels. It is the overall combination of various elements that makes the
label confusingly and deceptively similar and not any specific single
feature, for example, the Defendant uses a similar ribbon device in its
Indian brandy label. The competing labels are extracted below:
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xxx xxx xxx
45. In Skechers USA INC v. Pure Play Sports (2016/DHC/4344), the
Plaintiff alleged that the Defendants substantially copied the trade dress of
their shoes, leading to potential confusion among customers. The
competing trade dresses incorporated different marks, Plaintiff's trade
mark being ‘SKECHERS’ and Defendant's being ‘PUREPLAY’. The Court
held that the Defendant substantially copied the trade dress of the
Plaintiff's shoes, leading to potential confusion among customers. Despite
the presence of different marks, the Court found that such distinction was
insufficient to eliminate the possibility of confusion for an unwary
customer. The relevant portions of the decision are extracted below:
“18. Having myself seen the shoes of the plaintiff and compared the
same with those of the defendants, I am, prima-facie, satisfied that the
visual impression gathered from the trade dress of the competing
products is that trade dress of the plaintiffs product is substantially
copied by the defendants which is likely to result in confusion. There
is every likelihood that an unwary and gullible customer may get
confused as to the source of origin of the shoes of the defendants, and
may assume that the same come from the source of the plaintiff as the
shoes of the defendants have a remarkable resemblance with those of
the plaintiffs. No doubt, the trademarks of the plaintiff, i.e.
SKECHERS is inscribed on the inner sole of the plaintiffs shoes,
and the defendants mark PUREPLAY is similarly inscribed on the
inner sole of the defendants shoes, and there is no similarity in the
said two word marks. However, that by itself, does not appear to be
sufficient to dispel the possibility of confusion in the mind of an
unwary customer. This is, because, the several aspects of trade dress
are strikingly similar between the shoes of the plaintiffs and those of
the defendants and the overall get up and trade dress is also markly
similar. The word marks of the parties are printed on the inner sole,
which is not what catches the attention of a consumer looking to buy
a stylish shoe. As the plaintiffs themselves state - and this is evident
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from a visual examination of the shoes in question, the “selling point”
of these shoes in their catchy colour combinations, and texture
combinations, coupled with their cuts and stitching styles. It is these
features that would catch the attention of the consumer and it is likely
that the consumers - who would be youngsters more often than not,
would overlook the labels printed inside the shoe sole which contain
the word marks. So far as the logos of the parties are concerned,
though they are printed on the sides of the shoe uppers, they are not
all that prominent, as to immediately strike to the mind of a consumer.
The logos, by themselves, may not even cause brand recall to the
consumers.
19. The two logos of the plaintiffs and the defendant, as affixed on the
sides of the shoe uppers of the respective parties are not the prominent
and striking features in the overall trade dress of either of the parties.
The submission of learned counsel for the defendant, premised on the
different word marks of the plaintiffs and the defendant is answered
in Colgate (supra) in the following words:
…
20. If one were to apply the aforesaid test - as laid down
in Colgate (supra) and Gorbatschow (supra) to the facts of this case,
at this stage it would appear that the adoption of several unique
features by the plaintiffs on its GOwalk series by the plaintiffs gives
their shoes a unique trade dress which acts as a source identifier. The
distinctive get up at the back of the shoe with an inverted triangular
and stitching/lining in U shape below the said cut, appear to be
completely capricious and prima-facie cannot be described as
functional. The very distinctive and unique outsole, and suspension
rebound go pillars on the sole have been completely copied by the
defendant.
21. The onus would lie heavily on the defendant to explain as to why
the defendants have adopted the strikingly similar get up and trade
dress in respect of their shoes as that of the plaintiffs. Prima-facie,
at this stage it can be said that the defendants shoes are a result of a
conscious and substantial imitation of the colour combination,
textures, style, cut and stitching of the plaintiffs shoes . The copying
of - what the plaintiffs describe as the “responsive rebound go
pillars technology”, by the defendants on the soles of their shoes, in
my view, is a give-away of the defendants attempt to copy the
plaintiffs trade dress .”
xxx xxx xxx
48. A ld. Single Judge in Allied Blenders IV (supra) held that a bare
comparison of the Plaintiff's ‘OFFICERS CHOICE’ label with the
Defendant's ‘CHETAK’ label reveals that they are deceptively similar. The
relevant portion of the said decision is a follows:
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“33. On merits, the claim of the plaintiff, prima facie, merits
acceptance. A bare comparison, of the label of the “Officers Choice”
label used by the plaintiff, vis-à-vis the “Chetak” label used by the
defendant, reveals that they are deceptively similar. In both the labels,
(i) there is a gold line, dividing the label into an upper and lower half,
(ii) the lower half has a red background, whereas the upper half as a
white background, (iii) the lettering, on the lower red half of the label,
is in white, and the lettering, in the upper white half of the label is in
red, (iv) the placement of the trademarks “Officers Choice” (in the
case of the plaintiff's label) and “Chetak”, in the case of the
defendant's label, are similar, and covers a major portion of the upper
white half of the label and (v) both labels have an outer gold border.
The overall appearance of the two labels is, at a plain glance, similar,
and constitutes, therefore, similar trade dresses. The two labels are,
therefore, deceptively similar, as perceived by the man of average
intelligence and imperfect recollection.
34. The defendant in the written submission merely contends, in this
regard, that the name of the defendant's product was different from
that of the plaintiff's, there was the feature of a horse above the word
“Chetak” in the label of the defendant, and the packaging of the
goods was different, as the bottles were different in shape, size, and
had different caps. These features do not, however, prima facie,
detract from the overall similarity in the essential features of the
labels used by the plaintiff and the defendant.
35. The plaintiff has also placed, on record, orders passed by this
Court, in earlier suits, filed by the plaintiff, against defendants who
were manufacturing and selling Whisky, under labels which
infringed the “Officers Choice” trademark of the plaintiff. A tabular
depiction, of these orders, with the labels which were subject matter
of consideration therein, is provided thus:
…
36. The written submissions filed by the defendant to not dispute this
position. All that is said is that the orders, on which the plaintiff relies,
were either passed ex parte, or were passed in suits which were finally
settled.
37. Be that as it may, it is an undeniable fact that the plaintiff has
been granted ad interim relief, by this Court, on multiple occasions,
against the defendants who were selling Whisky using labels which
were deceptively similar to the “Officers Choice” label of the
plaintiff, and which are also similar to the label used by the present
defendant on its “Chetak” Whisky.
38. This fact, seen in the background of the admitted reflection, on
the website of the defendant, of the plaintiff's products - which the
defendant has, in its written submissions, sought to explain, by
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contending that it was merely representing the work earlier done, by
or for the plaintiff - clearly indicates that a consumer, of average
intelligence and imperfect recollection, is likely to confuse the
product of the defendant with that of the plaintiff.
39. Additionally, I may note, the “triple identity” test also stands
satisfied in the present case, as the mark of the defendant is
deceptively similar to the trademark of the plaintiff, they are being
used on identical goods, and these goods are sold through similar
trade channels and are available at the same outlets.
40. For all these reasons, I am of the opinion that, pending hearing
and final disposal of the present I.A., the plaintiff is entitled to ad
interim relief, in terms of the prayers in the present application.
41. Accordingly, there shall be an ad interim injunction, restraining
the defendant from using, manufacturing, selling, exporting,
importing, offering for sale, distributing or otherwise dealing in any
product, under the impugned “Chetak” label, or under any trademark
or tradename which is deceptively similar to the “Officers Choice”
and “Officers Choice Blue” trademarks, registered in favour of the
plaintiff.”
xxx xxx xxx
53. In the present suit, the Court has found the following similarities in
both the labels:
(i) The lower half of the label has a red background, and the upper
half has a white background,
(ii) There is a gold line, between the upper and lower half,
(iii) The lettering, on the lower red half of the label, is in white, and
the lettering, in the upper white half of the label is in red,
(iv) The placement of the trade marks ‘OFFICERS CHOICE’ (in the
case of the Plaintiff's label) and ‘PEACE MAKER’, in the case of the
Defendant's label, are similar, and covers a major portion of the
upper white half of the label and
(v) both labels have an outer gold border.
(vi) The use of certain insignia is also similar in nature. The intricate
differences cannot be noticed in the emblem/insignia.
54. Thus, the overall appearance of the two labels is similar at first glance,
constituting similar trade dress. Therefore, the two labels were deceptively
similar as perceived by a person of average intelligence and imperfect
recollection.
55. It is also the settled position that in the case of labels/trade dress, the
Court has to consider the totality of the trade dress and not specific
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elements. The Defendant has sought to highlight the differences in the
following manner:—

56. A perusal of the above chart shows that the so-called differences
actually establish a broad similarity. The mention of a Pantone shade of
red to distinguish the two product labels, the ribbon-like cut in the white
portion of the label, as well as the intricate differences in the insignia
used, in fact, have the opposite effect of highlighting the similarities rather
than the differences.
57. The Court is convinced, prima facie that there is a clear attempt to
indulge in “smart copying” which in the opinion of the Court would still
be copying. The chart of differences, in fact, shows that extraordinary
effort has been put by the Defendant in identifying the differences. The
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broad similarities are so obvious at the first look, the differences are
nudged into oblivion.
58. In Baker v. Master Printers Union of New Jersey, [47 USPQ 69], it
has been appropriately observed as follows:
“The most successful form of copying is to employ enough points of
similarity to confuse the public with enough points of difference to
confuse the courts. Few would be stupid enough to make exact copies
of another's mark or symbol.”

29. In an action pertaining to passing off, importance of trade dress is so
profound that it cannot be overemphasized. In Colgate Palmolive (supra),
this Court highlighted the objective of securing protection against imitation
and copying in trade dress and observed that trade dress is the soul for
identification of the goods as to their source and origin and is liable to cause
confusion in the minds of unwary consumers. It was also observed that it is
the overall impression that the customer gets to the source and origin of the
goods from visual impression of colour combination, shape of container,
packaging etc. Conscious imitation or substantial imitation of colour
combination or get up or layout again bares the design of the Defendant in
causing confusion in the minds of the customers and Court is not required to
find out whether there is confusion or deceptiveness. The test is whether
there is likelihood of confusion or deceptiveness in the minds of unwary
customers irrespective of dissimilarity in the trade name. In the case of
passing off, the second or for that purpose the subsequent comer has the
obligation to avoid unfair competition and become unjustly rich by
encashing on reputation of the prior comer. The second comer must
establish its own goodwill by creating its own trade dress with distinctive
features and attract the attention of purchasing public. Discussing the
principle of dishonest adoption, Court held that points of similarities must be
given greater attention than those of dissimilarities and where Court sees
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dishonesty, even though the similarities were less greater, attention ought to
be paid to the similarities. Plaintiffs have also correctly relied on the
judgement in Under Armour (supra) and given the deceptive similarity in
the rival packaging, the initial interest confusion test will squarely apply in
this case.
30. With the aforesaid principles in the backdrop, when the rival
packaging are compared the overall impression is that they are deceptively
similar. The test is not of identity but deceptive similarity and judged from
the point of a person with average intelligence and imperfect recollection. At
the cost of repetition, both packaging are 30 kg in size and Defendant No.1
has copied almost all elements such as green and gold colour scheme; gold
lettering in English designed exclusively to resemble the Urdu/Arabic script;
use of word ‘Zarda’ and that too in the same golden font and style; design of
‘hanging’ lanterns and stars at the top of the packaging in golden colour;
‘Zarda’ written in Urdu/Arabic script; and a picture showcasing a plate with
pulao at the bottom of the packaging with minarets etc. Learned Senior
Counsel for Defendant No.1 attempted to bring forth, what the said
Defendant perceives as dissimilarities i.e. white polka dots, matte finishing,
use of house mark DOUBLE CHABI in multiple places including on
foldable sides, placement of plate of pulao at the centre and red colour strip
at the bottom, to establish that there is no deceptive similarity and no intent
to copy. The test, however, is not to focus on dissimilarities but on
similarities of essential elements. It is enough if there is overall similarity,
which is the case here, to mislead anyone who looks at one packaging today
and mistakes the other if shown on another day as being one he had seen
before, as observed in Parle Products (supra), because an ordinary person is
not Sherlock Holmes. There is no doubt that products being identical, they
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will be stacked together in small and big shops and will be bought by all
kinds of consumers, illiterate or literate and in villages and towns, who
cannot be assumed to be blessed with elephant memory and may not be
discerning. In most cases, consumers have hazy memories and more often
than not, the intricate differences are not discernible. There are many
similarities in the rival packaging such as the green background,
stars/lanterns, gold Arabic style lettering, imagery pulao plate, use of word
Zarda in an exclusive style and font and contextually, all of this for identical
products. In my prima facie view, overall getup, layout and visual
impression are enough to confuse any consumer and this is particularly true
for rice which is a FMCG/food product, where purchase is quick, literacy
levels vary and consumers rely heavily on colours/lay out/get up etc. rather
than precise textual distinctions as also visual impressions carried forward
from previous purchases.
31. Much was argued on behalf of Defendant No.1 that word Zarda is
generic/descriptive meaning sweet rice dish and its use by any party cannot
amount to passing off as no party much less the Plaintiffs can claim any
monopoly over it. Assuming at this stage for the sake of argument that Zarda
is generic or descriptive, that does not materially dilute Plaintiffs’ claim of
passing off, since the gravamen of the action lies not only per se in the use
of Zarda as a sub-brand but also in the deceptive imitation of overall trade
dress, get up and visual presentation. It cannot be glossed over that in
Plaintiffs’ trade dress Zarda may function as a memorable component in
consumer recollection, especially when seen in the overall setting of
numerous other similar elements and resultantly, add to the consumer belief
that the product belongs to or has some connection with the Plaintiffs. As
rightly urged by the Plaintiffs, in this backdrop use of suffix ‘Special’ with
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Zarda is not enough for any consumer, guided by overall impression, to
draw out a fine distinction in the rival brands and is perhaps an unsuccessful
step towards creating an illusion that Defendant No.1’s packaging is
different so as to avoid an action for dishonest copying and imitation.
32. Defendant No.1 is also wrong in contending that Plaintiffs have not
shown sales of Golden Sella Basmati Rice under the 10X Zarda King sub-
brand with its alleged unique packaging. Plaintiffs have filed on record inter
alia documents to show yearly turnovers from 2021-2022 to 2023-2024,
which steadily increased and the cumulative sales in three years exceeded
Rs.86.16 crores under the brand 10X ZARDA KING. Plaintiffs have also
placed on record GST invoices for printing multi-layered laminated
packaging in question as also news article from Hello Entrepreneurs and
photographs of brand endorsements by Mr. Salman Khan and Ms. Saina
Nehwal. Plaintiffs have also filed photographs of billboards and hoardings
promoting its brand along with screenshots of promotions on YouTube and
IndiaMART listings. CA Certificate and sales invoices demonstrate sales
exceeding Rs.86 crores in 3 years under the packaging in question.
Revenues earned and expenses of 8 crores together indicate strong market
presence and goodwill of the Plaintiffs and highlight the distinctiveness of
the trade dress. Sales worth approximately Rs. 90 crores in 3 years cannot
prima facie be regarded as nominal or insignificant for FMCG product such
as rice and supports the claim of the Plaintiffs of having garnered immense
goodwill and distinctiveness in the trade dress. One also wonders !!! if
Plaintiffs’ trade dress was not distinctive and/or created a formidable
goodwill and reputation in the market, why Defendant No.1 chose to copy it
to the maximum extent possible? Certainly some minor differences are there
but as observed in Allied Blenders (supra), this is ‘smart copying’. I am
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reminded of the oft quoted observation from Baker v. Master Printers
Union of New Jersey, [47 USPQ 69] – “The most successful form of
copying is to employ enough points of similarity to confuse the public with
enough points of difference to confuse the court. Few would be stupid
enough to make exact copies of another’s mark or symbol”. Defendant No.1
has in fact put in efforts and labour to bring out some differences while
copying, however, on the first impression principle the similarities are far
too many and so obvious that the differences take a back seat and fade into
oblivion.
33. Defendant No.1 also contests the claim of passing off by the Plaintiffs
on the ground that there can be no monopoly on colours. In Colgate
Palmolive (supra), Court held that it is the overall impression that the
customer gets as to the source and origin of the goods from visual
impression of colour combination, shape, packaging etc. and may be, no
party can have monopoly over a particular colour but if there is substantial
reproduction of the colour combination in the similar order on the
packaging, which is imprinted on the minds of the consumers, it is liable to
cause confusion and dilution of the colour combination. Trade dress plays a
vital role in identifying products and tracing their origin to the source and its
imitation is liable to cause confusion in the minds of unwary customers,
particularly, those who have been using the products over a long period of
time. Relevant paragraphs of the judgment in Colgate Palmolive (supra) are
as under:-
“55. May be, no party can have monopoly over a particular colour but if
there is substantial reproduction of the colour combination in the similar
order either on the container or packing which over a period has been
imprinted upon the minds of customers it certainly is liable to cause not
only confusion but also dilution of distinctiveness of colour combination.
Colour combination, getup, layout and size of container is sort of trade
dress which involves overall image of the product's features. There is a
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wide protection against imitation or deceptive similarities of trade dress
as trade dress is the soul for identification of the goods as to its source
and origin and as such is liable to cause confusion in the minds of unwary
customers particularly those who have been using the product over a long
period.
56. The difference in the style of the words appearing on the container or
packing identifying its manufacturers by way of style, colour combination
or textures or graphics is certainly significant or relevant for determining
the overall imitation of the container but if a product having distinctive
colour combination, style, shape and texture has been in the market for
decades as in this case it is in the market since 1951 it leads to ineluctable
inference of having acquired secondary meaning on account of its
reputation and goodwill earned at huge cost.
57. It is not the diligent or literate or conscious customer who always
remain conscious to the quality of goods he has been purchasing which
determines an offence of passing off. It is the unwary, illiterate and
gullible persons who determine by arriving at a conclusion whether the
infringed goods are confusingly similar in colour combination, getup,
layout printed over the container or packing. If it is not so then the offence
of passing off will cease to have its existence once the guilty party chooses
a different trade name.”

34. Some of the observations by this Court in Dabur India (supra) are
also relevant to this issue and are as follows:-
“48. It is also pertinent to mention that the subject matter of the colour
combination, get-up and layout are not only covered in the subject matter
of copyright but also covered under the common law remedy i.e. law of
passing off. Even in the New Trade Mark Act, 1999 the definition of the
mark is given in Section 2(m) which says that “Mark” include a device,
brand, style, label, ticket, name, signature, word, letter, numeral, shape of
goods, packaging or combination of colours or any combination thereof.
As per the definition and as per the judgments mentioned above it is clear
that the colour scheme, get up, layout and combination of colours is
covered under the action for passing of also.
49. It appears that the work in question is an original artistic work within
Section 2(c) of the Copyright Act and same is protected under Section 51
of the Copyright Act, 1957 in case the same has been copied by the
defendant in material in case the plaintiff is able to show the case of
infringement of copyright, then an injunction under Section 55 of the Act
can be issued against infringing party.
50. No doubt, it has been seen that in the trademarks and Copyright cases,
each case dependent upon its own fact and thus it has to be decided as per
its own merit. In the present, there is no valid explanation given as why the
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defendant's new packaging has similar essential feature, get up, layout,
colour combination and placement of features as that of the plaintiff
packaging which is being used by the plaintiff since the year 2006.
51. The defendant's counsel has merely tried to justify the stand of the
defendant on all individual features rather overall combination of colours
and layout. The defendant main stress was to challenge the rights claimed
by the plaintiff. No justification was given by the defendant as how to hit
upon the new packaging which his similar to the packaging of the plaintiff.
It appears to the Court that in case, both packaging used by the parties are
compared in meaningful manner, it can easily come to the conclusion that
one is designed by placing the another. From the placing used by the
defendant, it is obvious that all essential features are deceptively similar to
the packaging of the plaintiff. The letters used in the packaging are in the
same colour. Side penal and arrangements and placement of pictorial
device of fire are almost similar. One fails to understand, when the
defendant had so many packagings which were being used by the earlier in
the course of its business which includes black colour packaging, why the
defendant has adopted and used the packaging similar to that of the
plaintiff. The said conduct of the defendant cannot be called as a bonafide
as the defendant is in the same trade and the defendant must be aware
about the packaging of the plaintiff at the time of its adoption.”

35. In Mondelez India (supra), Court compared the similarities in the
rival trade dresses including the colour scheme and held that Plaintiff had
made out a case of passing off. Relevant passages are as follows:-
“28. In the background of these pleadings and documents placed on
record by the parties, this Court is of the opinion that the present is a case
of res ipsa loquitur. The comparative labels set out hereinabove show that
the two products have startling similarities. Some of the features, which
are similar, are set out below:
A. The Defendant's pillow pack is of the same blue/purple background
and of the same size as that of the Plaintiffs'.
B. The Plaintiffs' pillow pack has a brown oval at the centre, while the
Defendant has placed a diamond in brown colour at the centre.
C. The Plaintiffs have displayed the origin of the product i.e., the
name of the manufacturer as ‘CADBURY’S’ on the top left corner of
the pillow pack. The Defendant has placed its name ‘NEERAJ’ in an
identical manner and positioning at the top left corner, as that of the
Plaintiffs.
D. The brown oval on the Plaintiffs' pillow pack is bordered by a
blue/purple oval while the brown diamond on the Defendant's pillow
pack is also bordered with the blue/purple border.
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E. The Plaintiffs have inscribed the trade mark ‘GEMS’ in the colour
white, and the Defendant has used an identical white for writing
‘JAMES BOND’.
F. Further, the Defendant has also copied the Plaintiffs' scripting of
the trade mark ‘GEMS’ on the pillow pack. The trade mark ‘GEMS’ is
written in an uneven script and the Defendant has also placed
‘JAMES BOND’ in an uneven script.
G. Just as the Plaintiffs, the Defendant has also created a visual
impression of an explosion in blue/purple colour in the middle with
lines emanating from the centre and tablets flying out.
H. The colour combination of the tablets adopted by the Defendant is
also similar to that of the Plaintiffs.
I. The Defendant has also placed half chocolate-tablets showing the
chocolate centre in the exact same manner as the Plaintiffs.
J. Additionally, the Defendant has conceptualized the impugned
product ‘JAMES BOND’ by being inspired by the character namely
‘GEMS BOND’, as used by the Plaintiffs for promotion of their
‘GEMS’ branded products, as submitted hereinabove.
29. In two seminal judgments of the Supreme Court, the test of
infringement and deceptive similarity of competing marks is well settled.
The Supreme Court in Corn Products Refining Co. v. Shangrila Food
Products Ltd., (1960) 1 SCR 968, has observed that the said question has
to be approached from the point of view of a man of average intelligence
and of imperfect recollection. It was observed that, to such a man, the
overall structural and phonetic similarity and the similarity of the idea in
the two marks is reasonably likely to cause a confusion between them. The
relevant extracts from the judgment in Corn Products (supra) are set out
below:
“18. We think that the view taken by Desai, J., is right. It is well
known that the question whether the two marks are likely to give rise
to confusion or not is a question of first impression. It is for the court
to decide that question. English cases proceeding on the English way
of pronouncing an English word by Englishmen, which it may be
stated is not always the same, may not be of much assistance in our
country in deciding questions of phonetic similarity. It cannot be
overlooked that the word is an English word which to the mass of the
Indian people is a foreign word. It is well recognised that in deciding
a question of similarity between two marks, the marks have to be
considered as a whole. So considered, we are inclined to agree with
Desai, J., that the marks with which this case is concerned are similar.
Apart from the syllable “co” in the appellant's mark, the two marks
are identical. That syllable is not in our opinion such as would enable
the buyers in our country to distinguish the one mark from the other.
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19. We also agree with Desai, J., that the idea of the two marks is the
same. The marks convey the ideas of glucose and life giving properties
of vitamins. The Aquamatic case (Harry Reynolds v. Laffeaty's Ld.) is
a recent case where the test of the commonness of the idea between
two marks was applied in deciding the question of similarity between
them. Again, in deciding the question of similarity between the two
marks we have to approach it from the point of view of a man of
average intelligence and of imperfect recollection. To such a man
the overall structural and phonetic similarity and the similarity of
the idea in the two marks is reasonably likely to cause a confusion
between them .”
30. In Parle Products (P) Ltd. v. J.P. & Co., Mysore [(1972) 1 SCC
618 : AIR 1972 SC 1359], it was held that the Court has to see similarities
and not the dissimilarities. The relevant extracts of the said judgment,
which has been followed in innumerable judgments subsequently, are set
out hereinbelow:
“According to Kerly's Law of Trade Marks and Trade
th
Names (9 Edition Paragraph 838) “Two marks, when placed side
by side, may exhibit many and various differences, yet the main idea
left on the mind by both may be the same. A person acquainted with
the one mark, and not having the two side by side for comparison,
might well be deceived, if the goods were allowed to be impressed
with the second mark, into a belief that he was dealing with goods
which bore the same mark as that with which he was acquainted.
It would be too much to expect that persons dealing with trademarked
goods, and relying, as they frequently do, upon marks, should be able
to remember the exact details of the marks upon the goods with which
they are in the habit of dealing. Marks are remembered rather by
general impressions or by some significant detail than by any
photographic recollection of the whole. Moreover, variations in
detail might well be supposed by customers to have been made by the
owners of the trade mark they are already acquainted with for
reasons of their own .
It is therefore clear that in order to come to the conclusion whether
one mark is deceptively similar to another, the broad and essential
features of the two are to be considered . They should not be placed
side by side to find out if there are any differences in the design and if
so, whether they are of such character as to prevent one design from
being mistaken for the other. It would be enough if the impugned
mark bears such an overall similarity to the registered mark as
would be likely to mislead a person usually dealing with one to
accept the other if offered to him .”
31. Similar is the view taken by the ld. Single Judge of this Court in ITC
Ltd. v. Brittania Industries Ltd. [(2016) 233 DLT 259], wherein the
Plaintiff sought to restrain the Defendant from violating its rights in the
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Plaintiff's packaging/trade dress of ‘Sunfeast Farmlite Digestive - All
Good’ biscuit by using a deceptively and confusingly similar trade dress
for its ‘Nutri Choice Digestive Zero’ biscuit. On the aspect of deception
and confusion, the Court placed reliance upon Parle Products (supra) and
observed as under:
“36. Biscuits are normally stacked on shelves in a grocery shop or a
supermarket. Usually there is an entire section where the biscuits of
different manufacturers are arranged side by side. Where the product
is an eatable like a biscuit, the colour and the colour scheme of the
packaging plays an important role in the consumer making an
initial choice and in enabling a discerning consumer to locate the
particular brand of a manufacturer. The aspect of ‘initial interest’
was explained by this Court in Baker Hughes Limited v. Hiroo
Khushalani as under:
“In some case, however, it is also possible that such a purchaser
after having been misled into an initial interest in a product
manufactured by an imitator discovers his folly, but this initial
interest being based on confusion and deception can give rise to a
cause of action for the tort of passing off as the purchaser has
been made to think that there is some connection or nexus
between the products and business of two disparate companies.”
37. Therefore, when another competing variant of the biscuit is
introduced six months later and a consumer on the basis of the
popularity of a product that has recently been introduced makes a
mistake as to which packet of biscuit he is picking up, it can be argued
that the initial interest was based on confusion and deception and,
therefore, gives rise to a tort of passing off. In Wal Mart (supra) it was
observed that the product's trade dress can be protected only if it is
shown that it had acquired a secondary meaning “since design, like
colour, is not inherently distinctive.” However, the product in that
case was a certain kind of clothing. In that context, it was said that the
colour by itself does not identify the source of the product. However,
that may not be entirely true when it comes to products like biscuits.
The packaging of a biscuit does become associated with the
manufacturer or brand. The colour on the wrapper would certainly
play an important part .
38. Similar marks or features used in wrappers of competing biscuits
was the subject matter of Parle Products (P) Ltd. v. J.P. &
Co. (supra). The Appellants there owned certain registered
trademarks one of which was “Glucose” and was used on their half
pound biscuit packets. Another registered trade mark was a wrapper
with its colour scheme, general set up and entire collocation of words.
The wrapper was of buff colour and depicted a farm yard with a girl
in the centre carrying a pail of water and cows and hens around her
on the background of a farmyard house and trees. The Respondent's
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wrapper contained a picture of a girl supporting with one hand a
bundle of hay on her head and carrying a sickle and a bundle of food
in the other, the cows and hens surrounding her. The trial court
declined the injunction. The High Court looking at the broad features
did not think that they were so similar so as to deceive an ordinary
purchaser. Since it was an action for infringement, the Supreme Court
declined to treat it as a case of passing off. Nevertheless, it explained
that in order to come to a conclusion whether one mark is deceptively
similar to another “the broad and essential features of the two are to
be considered.” It was further explained as under:
“They should not be placed side by side to find out if there are any
differences in the design and if so, whether they are of such
character as to prevent one design from being mistaken for the
other. It would be enough if the impugned mark bears such an
overall similarity to the registered mark as would be likely to
mislead a person usually dealing with one to accept the other if
offered to him. In this case we find that the packets are
practically of the same size, the colour scheme of the two
wrappers is almost the same; the design on both though not
identical bears such a close resemblance that one can easily be
mistaken for the other . The essential features of both are that there
is a girl with one arm raised and carrying something in the other
with a cow or cows near her and hens or chickens in the
foreground. In the background there is a farm house with a fence.
The word “Gluco Biscuits” in one and “Glucose Biscuits” on the
other occupy a prominent place at the top with a good deal of
similarity between the two writings. Anyone in, our opinion who
has a look at one of the packets to-day may easily mistake the
other if shown on another day as being the same article which he
had seen before. If one was not careful enough to note the
peculiar features of the wrapper on the plaintiffs goods, he might
easily mistake the defendants’ wrapper for the plaintiffs if shown
to him some time after he had seen the plaintiffs'. After all, an
ordinary purchaser is not gifted with the powers of observation of
a Sherlock Holmes . We have therefore no doubt that the
defendants’ wrapper is deceptively similar to the plaintiffs' which
was registered.”
(emphasis supplied)

36. In this context, it would be useful to allude to the judgment of the
Co-ordinate Bench of this Court in Emami Limited v. Dabur India
Limited, MANU/DE/0676/2026 , wherein the following observations are
made:-
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“ANALYSIS AND FINDINGS:
8. The controversy in the present Application is restricted to the question
as to whether the Impugned Trade Dress used by the Defendant is passing
off the Defendant's Product as that of the Plaintiff's Product. The Plaintiff
has restricted the prayer in this Application only for granting injunction
restraining the Defendant from using the Impugned Trade Dress on
Defendant's Product on the ground of passing off.
9. The passing off is based on similarities of get-up of packaging used by
the defendant that amounts to misrepresentation damaging the plaintiff.
The plaintiff must prove that the get-up used by the plaintiff is distinctive
and the defendant's get-up is similar enough to deceive, notwithstanding
any other differences between the two sets of goods. The plaintiff must
make out that the defendant's goods are calculated to be mistaken for the
plaintiff's goods, and both the goods unquestionably resemble each other
and the features that resemble with each other are not common to the
trade. The distinctive nature of the features adopted by the plaintiff must
be 'eye-catching' and serve to identify the goods of one particular source.
The plaintiff must show that the confusion arises from those features of the
get-up, which are distinctive to the plaintiff taken in combination with
each other. The plaintiff cannot pick and choose the elements of get-up
and must be considered as a whole for comparing it with the get-up of the
defendant as a whole, including the features which are not be found in the
plaintiff's get-up, including the brand names or other marks.
xxx xxx xxx
13. The Plaintiff has contended that the Defendant's Product using the
Impugned Trade Dress is a deliberate attempt to imitate the Plaintiff's
Trade Dress by copying the elements / features to pass off the Defendant's
Product as that of the Plaintiff. It is submitted by the Plaintiff that the
Impugned Trade Dress leads the consumer to believe that there is an
association between the Defendant's Product and the Plaintiff, where none
exists. The Plaintiff has alleged that both the Plaintiff's Product and the
Defendant's Product are red in colour, which are packaged in transparent
bottles having identical shapes and configuration. The use and placement
of hibiscus, ice and ayurvedic herbs on the packaging of the Defendant's
Product is identical and deceptively similar to the Plaintiff's Trade Dress
leading to confusion and / or deception in the minds of general public.
14. The Plaintiff has relied upon the case of Dabur Ltd. (supra) to argue
that when there is no valid explanation given as to why the Impugned
Trade Dress has similarity of essential features, get-up, layout, colour
combination and placement of features with the Plaintiff's Trade Dress,
the Impugned Trade Dress is liable to be restrained. The Plaintiff has
contended that the Impugned Trade Dress is a slavish imitation of the
Plaintiff's Product, which is evident from the comparison of sachets of the
Plaintiff's Product and the Defendant's Product. It is also contended by the
Plaintiff that the Defendant has adopted identical sachets to that of the
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Plaintiff by using the same terms 'Raahat', 'Aaraam' and 'Tarotaazgi' in
Hindi, which is appearing on the sachets of the Plaintiff's Product.
15. The Plaintiff has relied upon Corn Products (supra), Heins Italia
(supra) and Cadila Healthcare (supra) to contend that in passing off
action, similarities rather than dissimilarities have to be taken note and
the colour scheme and overall effect of the packaging have to be seen. The
Plaintiff has submitted that the Impugned Trade Dress is completely
dishonest and malafide with the clear intention of passing off the
Defendant's Product as that of the Plaintiff. The Plaintiff has also relied
upon Midas Hygiene (supra) and Hindustan Pencils (supra) to argue that
if a party for no apparent reasons adopts a deceptively similar trade dress,
it would be difficult to avoid an order of injunction as it is assumed that
the adoption was dishonest and indicates that the defendant tried to pass
off its goods as those of the plaintiff.
16. The Plaintiff has submitted that the essential features of the Plaintiff's
Trade Dress are not common to the trade and are distinctive. It is also
contended by the Plaintiff that the fact that the Defendant has claimed that
the Impugned Trade Dress is distinctive and has also applied for the trade
mark registration on proposed-to-be-used basis, establishes an
unequivocal establishment by the Defendant that the Plaintiff's Trade
Dress possesses inherent distinctiveness. The Plaintiff has relied upon
Procter and Gamble (supra) to argue that the Defendant cannot dispute
the distinctive character of the Plaintiff's Trade Dress as the Defendant
itself has claimed that Impugned Trade Dress is distinctive, when the same
is essentially identical to and an imitation of the Plaintiff's Trade Dress.
17. The Plaintiff has submitted that the claim of the Defendant of prior use
of red oil is not relevant as the said product of the Defendant is not in the
cooling oil segment, but it is used for massage oil segment for the infants.
18. Per contra, the Defendant has contended that the Plaintiff has failed to
establish the trinity test for seeking relief of passing off as the Plaintiff has
not been able to establish goodwill with respect to the Plaintiff's Trade
Dress, there has been no misrepresentation by the Defendant and the
Plaintiff is not likely to incur any damages. The Defendant has also
submitted that the prominent house mark of the Defendant 'DABUR' is the
distinguishing feature in the Defendant's Product, which dispels any
possibility of confusion between the Defendant's Product and the
Plaintiff's Product. Further, it was contended that the Plaintiff has
multiple variants and products under the brand, 'NAVRATNA' and the
sales figures provided are not exclusive to the Plaintiff's Product using the
Plaintiff's Trade Dress in question in the present Suit. It was submitted
that to establish goodwill, the Plaintiff must produce sales figures
pertaining to the Plaintiff's Product and not the entire 'NAVRATNA'
brand. The Defendant relied upon Soothe Healthcare (supra) to submit
that the cumulative sales and advertising expenses of all products under a
particular mark without pointing out the goodwill of the particular
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product in question is not sufficient to establish the goodwill of that
particular product. The Defendant also relied upon the decision of the
Supreme Court in Brihan Karan (supra) to submit that it is necessary for
the Plaintiff to provide the expenditure incurred on promotion and
advertisement of the Plaintiff's Product to establish goodwill.
19. The Defendant also submitted that on a holistic comparison of the
Defendant's Product and the Impugned Trade Dress with the Plaintiff's
Trade Dress, there are substantial and inherent dissimilarities in the
elements and the features. It was submitted that in the case of passing off,
the Plaintiff must establish that the Defendant has copied or tried to copy
some of the essential features of the Plaintiff's Trade Dress, which are
distinctive and associated with the Plaintiff alone, however, the Plaintiff
has failed to do so. It was also argued by the Defendant that the red
colour is functional in nature and as a result of the ingredients used in
producing the cooling oil and, therefore, the Plaintiff cannot claim any
right over it as held in M/s. M.L. Brothers (supra).
20. It was further argued by the Defendant that the features such as
hibiscus flower, ice blocks, menthol leaves and descriptive words such as
'thanda', 'cool', 'cool tel' and 'cooling oil' are all common / generic in
nature and common to the trade. It was argued by the Defendant that
when the outer packaging of both the Plaintiff's Product and the
Defendant's Product are compared as a whole, the products are dissimilar
and can be easily distinguishable. It was submitted by the Defendant that
the Plaintiff is not the first adopter and user of the red colour packaging
for cooling hair oils. The Defendant relied upon Zydus Wellness (supra) to
argue that mere use of red colour by the Defendant does not make the
Impugned Trade Dress similar to the Plaintiff's Trade Dress.
21. Having heard the learned Counsel for both the Plaintiff and the
Defendant and considering the material placed on record, the overall
comparison of the Defendant's Product with the Plaintiff's Product shows
that there is an attempt to imitate the essential features of the Plaintiff's
Trade Dress by the Impugned Trade Dress. The Impugned Trade Dress is
deceptively similar to the Plaintiff's Trade Dress as the essential features
of the Plaintiff's Trade Dress such as colour of the packaging, colour of
the cap, colour of the liquid, shape of the bottle and the use of
combination of red, white, yellow and gold with the essential features of
ice cubes, hibiscus flowers, ayurvedic herbs are copied in the Impugned
Trade Dress along with the use of the words 'Raahat', 'Aaraam' and
'Tarotaazgi' in the same order. The common features in the Plaintiff's
Trade Dress and the Impugned Trade Dress does not appear to be a mere
coincidence. Even the quantity of the oil, i.e. 270 ml is identical in both the
Plaintiff's Product and the Defendant's Product. The overall comparison
of the get-up at the point of sale creates an impression that the Impugned
Trade Dress is an imitation of the essential features of the Plaintiff's Trade
Dress. It is not necessary to have exact identity for side-by-side
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comparison between the Impugned Trade Dress and the Plaintiff's Trade
Dress. It is sufficient if there is an overall similarity in the idea or
impression assessed from the perspective of a consumer of average
intelligence having imperfect recollection as held in Cadila Healthcare
(supra). A holistic view of the Impugned Trade Dress appears to be
deceptively similar to the Plaintiff's Trade Dress. The Defendant has not
offered any explanation or bonafide reason for adopting the Impugned
Trade Dress having identical features to that of the Plaintiff's Trade
Dress.
22. It is settled law that to determine the passing off, the focus must be on
the similarities rather than dissimilarities. The overall appearance at first
impression is crucial to identify the passing off. The meticulous side-by-
side dissection is not necessary and the trade dress has to be judged as a
whole. Based on the overall get-up of the Defendant's Product, it is evident
that the same is likely to cause confusion as the dominant similarities
between the Impugned Trade Dress and the Plaintiff's Trade Dress
overwhelm the minor differences. The argument that a well-known house
mark will dispel the confusion, cannot be accepted in view of the overall
similarity which is evident from the holistic comparison of the Defendant's
Product with the Plaintiff's Product.
23. The Plaintiff has prima facie established the goodwill by showing the
consistent and uninterrupted use of the Plaintiff's Product since 1989.
Considering the sales turnover, it indicates that the Plaintiff has
longstanding and formidable reputation.
24. The Defendant's Product was launched in 2023 and there is no dispute
that the Plaintiff's Product was well established in the market at the time
of the launch of the Defendant's Product. Therefore, the Defendant cannot
deny the Plaintiff's goodwill or attempt to have a free ride on the same.
25. The Plaintiff cannot claim monopoly on red colour, herbs, hibiscus
flower if they are considered individually. However, the distinctive
combination, arrangement and presentation resulting in ensemble, which
has been in use for a considerable long period has acquired secondary
meaning in favour of the Plaintiff's Product. Even though the individual
components of the Plaintiff's Trade Dress are common to the trade, the
overall get-up of the Plaintiff's Trade Dress requires protection.
26. The Defendant's reliance on third-party material does not disentitle
the Plaintiff as the Plaintiff is not required to sue every small infringer as
held in Pankaj Goel (supra) and National Bell (supra).
27. The Plaintiff has prima facie established distinctiveness in the
Plaintiff's Trade Dress whereas the Defendant has not been able to
establish any distinction between the Impugned Trade Dress and the
Plaintiff's Trade Dress. Accordingly, the Plaintiff has been able to
establish the ingredients of passing off as per the settled principles of
law.”
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37. This judgment has been upheld by the Division Bench in Dabur India
Limited v. Emami Limited, 2026 SCC OnLine Del 3922 (DB) . Court has
emphasized on the importance of colours as part of a trade dress and has
negated the contention of Dabur that if the individual elements of trade dress
are common to trade, use of combination by the Appellant would not
amount to passing off. Relevant paragraphs are as follows:-
“ 60. Mr Bhandari has contested the said submission by saying that the
other players in the cooling oil segment as referred to by Mr Sethi, do not
have different get-up/trade dress and in any case they do not have a large
market share as compared to the respondent/plaintiff, as such not affecting
the respondent. It is settled position of law that the plaintiff is dominus
litis, it would be upto them to decide whether an action against trademark
and passing off is to be brought against such third party players. As stated
above in an action of passing off, the Court has to look at the overall
appearance of the product and not individual aspects/attributes of the
trade dress including the house mark of the respondent which in itself has
acquired considerable goodwill over the years.
61. In view of our above conclusion, the plea of Mr Sethi that Red Colour
packaging, ice cubes, hibiscus, herbs, flowers, etc. are common to the
trade for Red colour oil cannot be prima facie accepted. We agree with the
conclusion drawn by the learned Single Judge in the impugned order,
more particularly in paragraph No. 21, which we reproduce as under:
“21. Having heard the learned counsel for both the Plaintiff and the
defendant and considering the material placed on record, the overall
comparison of the defendant's Product with the Plaintiff's Product
shows that there is an attempt to imitate the essential features of the
Plaintiff's Trade Dress by the Impugned Trade Dress. The Impugned
Trade Dress is deceptively similar to the Plaintiff's Trade Dress as the
essential features of the Plaintiff's Trade Dress such as colour of the
packaging, colour of the cap, colour of the liquid, shape of the bottle
and the use of combination of red, white, yellow and gold with the
essential features of ice cubes, hibiscus flowers, ayurvedic herbs are
copied in the Impugned Trade Dress along with the use of the words
‘Raahat’, ‘Aaraam’ and ‘Tarotaazgi’ in the same order. The common
features in the Plaintiff's Trade Dress and the Impugned Trade Dress
does not appear to be a mere coincidence. Even the quantity of the oil
i.e. 270 ml is identical in both the Plaintiff's Product and the
defendant's Product. The overall comparison of the get-up at the point
of sale creates an impression that the Impugned Trade Dress is an
imitation of the essential features of the Plaintiff's Trade Dress. It is
not necessary to have exact identity for side-by-side comparison
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between the Impugned Trade Dress and the Plaintiff's Trade Dress. It
is sufficient if there is an overall similarity in the idea or impression
assessed from the perspective of a consumer of average intelligence
having imperfect recollection as held in Cadila Healthcare (supra). A
holistic view of the Impugned Trade Dress appears to be deceptively
similar to the Plaintiff's Trade Dress. The defendant has not offered
any Explanation or bonafide reason for adopting the Impugned Trade
Dress having identical features to that of the Plaintiff's Trade Dress.”
(Emphasis supplied)
62. It follows on a comparison of the products of the parties, it is clear that
the overall similarity including the presence of the yellow triangle which
states “New” in Hindi, the flower, ice cubes, herbs even the terms
“Raahat”
“Aaram”
and “Tarotaazgi”
find mention in the same sequence bereft of a justification for such an
adoption of the impugned trade dress including the common bottle size of
270 ml. As such we find ourselves in agreement with the findings of the
learned Single Judge.
63. In so far as the submission of Mr Sethi that the house mark of the
appellant being “DABUR” under which the trade name “COOL KING”
operates, and in that sense, the house mark being a well known mark is
enough to distinguish the product of the appellant from that of the
respondent. This submission has been contested by Mr Bhandari by stating
that even “EMAMI” is well known mark and the house mark shall not
have any bearing or effect on the trade dress and get up, which has been
adopted by the appellant-defendant as late as 2023 with a clear motive to
pass off its product as that of the plaintiff's/respondent's.
64. Mr Sethi, has also argued that if the individual elements of trade dress
are common to the trade then a combination thereof cannot be said to
constitute passing off. We do not agree with this submission. We concur
with the findings of the learned Single Judge that the test for passing off
has to be examined on the touchstone of similarities rather than the
dissimilarities. Mr Sethi has also argued that apart from the features
which according to him are common to the trade, even the shape of the
bottle is distinctive which in its 270ml size has a unique cooling tube. We
find that both the products look similar enough to cause damage to the
respondent's product and the appellant should not be allowed to blow hot
and cold on this aspect to suit its case.
xxx xxx xxx
67. Mr Sethi has relied upon various judgments, being Star Bazar Pvt.
Limited v. Trent Limited, 2010 SCC OnLine Del 4764; Marico
Limited v. Agro Tech Foods Limited, ILR 2010 Supp (3) Del 402; Holy
Cow Foundation v. Patanjali Gramodyog Nyas (Trust), 2026 DHC:
146; Gensol Electric Vehicles Pvt. Limited v. Mahindra Last Mile Mobility
Limited, 2025:DHC:116; Intex Technologies (India) Limited v. Tech
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(India), 2017 SCC OnLine Del 7392; Meso Pvt. Limited v. Liberty Shoes
Limited, AIR 2019 Bom 35; Valvoline Cummins Limited v. Apar Industries
Limited, 2013 DHC:6052; and Peshawar Soap and Chemicals v. Godrej
Soaps Limited, 2000 SCC OnLine Del 959 : (2001) 58 DRJ 170 to state
that the presence of the house mark “DABUR” on the appellant's
packaging is enough to allay any confusion in the minds of the consumer.
68. With regard to said submission, it is settled law in the case of passing
off, the consumer is taken to be a person of an average intellect and
imperfect recollection [Reference: Cadila Healthcare Ltd. v. Cadila
Pharmaceuticals Ltd., (2001) 5 SCC 73]. This combined with the fact that
the goods are being sold at a low cost, which would entail that the degree
of care exercised by an average consumer at the time of purchase would
be at a lower threshold, the presence of the house mark has little role to
play in this background, given the other overlapping features in the trade
dress. In other words, it is only the get up and trade dress of the product
which will determine the sale of the products and in view of the fact that
trade dress and get up of the appellant product is likely to cause confusion,
cannot be discountenanced. Hence, the judgments as relied upon by Mr
Sethi have no applicability to the present case given the distinguishing
factual aspects and the general rule of assessment in passing off action.
Each case has to be considered in the context of its unique factual
background.”

38. Another plank of the argument on behalf of Defendant No.1 was that
impugned trade dress was bona fidely adopted inasmuch as throughout its
trade dress, Defendant No.1 is using its house mark “DOUBLE CHABI”,
which clearly distinguishes it from Plaintiffs’ trade dress and it is trite that
when brands of the products are clearly identifiable, there is no scope of
confusion. Reliance was placed on the judgments in Intex Technologies
(supra) and Britannia Industries v ITC (2021) (supra) . This argument only
deserves to be rejected in the facts of this case, where prima facie it is found
that there is substantial copy of the trade dress as also given the nature of the
products i.e. rice, where visual impression generally dominates consumer’s
decision and hence, the importance of trade dress cannot be underscored.
There can be no quarrel with the proposition that in a given case, the house
mark may serve as a source identifier and distinguish the product in
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question, however, in the present case given the deceptive similarity of the
impugned trade dress, presence of house mark of Defendant No.1 i.e.
DOUBLE CHABI is not sufficient to defeat Plaintiffs’ claim of passing off.
The competing products are identical, namely rice, which are marketed to
the same class of consumers through common trade channels. Rice is
typically a fast-moving consumer good, sold from retail shelves, kirana
stores and/or wholesale counters and very often is purchased by consumers
based on prior memory of packaging, colour schemes, layout and general
trade dress rather than detailed scrutiny of brand distinctions. In such
environments, buying decisions are predominantly driven by visual
recognition of packaging and similarity in trade dress including its colour
scheme rather than careful and considered textual analysis of brand names or
house marks. In this scenario presence of the house mark DOUBLE CHABI
is prima facie not sufficient to dispel consumer confusion. In coming to this
conclusion, I find strength from the judgment of the Division Bench in
Dabur India (DB) (supra), where the Division Bench observed that given
the overlapping features in the trade dress which are likely to cause
confusion, presence of house mark has little role to play. Relevant passage is
as follows:-
“65. Mr Sethi has also relied upon the decision in the case of Kellogg
Company v. Pravin Kumar Bhandbhai, 1996 SCC OnLine Del
170 : (1996) 16 PTC 187 to say that the presence of the house mark is a
distinguishing feature. Whereas Mr Bhandari has opposed the said
submission by relying on the judgments in the cases of N. Ranga Rao and
Sons v. Anil Garg, 2005 SCC OnLine Del 1293 and Euro-Solo Energy
Systems Ltd. v. Eveready Industries India Ltd., 2009 SCC OnLine Cal
1991 and argued that the said judgment does not lay an absolute rule that
the house mark is a complete cure for the overall similarity appearance.
The trade dress has to be taken as a whole and not in part/in isolation in
view of the judgment in Cadila Healthcare Ltd. v. Cadila Pharmaceuticals
Ltd., (2001) 5 SCC 73. The said principle is clear and has been upheld by
the Courts that the same falls under the anti-dissection rule in cases
concerning trade mark and the same has been upheld by the Supreme
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Court in Pernod Ricard (supra). However, the Supreme Court in Pernod
Ricard (supra) had held that the Courts are not precluded from
applying the dominant feature test. In the present case, since there are
similarities between the trade dresses of the parties, wherein the
respondent is the prior bona fide user of the same, we accept the argument
of Mr Bhandari and are of the view the said judgment does not help the
case of Mr Sethi.”


39. In Colgate Palmolive (supra), this Court held that despite the marks
‘Colgate’ and ‘Anchor’ being distinct with not even an iota of similarity
either in look or sound, an illiterate person who goes to the shop with an
instruction to buy Colgate Tooth Powder which has a trade dress of colour
combination of red and white, will not be able to distinguish the tooth
powder if he is handed over Anchor Tooth Powder contained in a container
with identical trade dress and colour combination of red and white in the
same order and proportion. The difference in names/brands will not make
any difference to such a consumer and goods of Defendant could be easily
passed off as goods of the Plaintiff. Same contention was also negated by
this Court in Allied Blenders (supra). In the said case, the competing labels
in question were held to be deceptively similar owing to substantial
imitation of the trade dress of Plaintiff’s label by the Defendant, despite
Plaintiff’s label having its trademark ‘Officer’s Choice’, which was clearly
structurally, visually and phonetically different from Defendant’s mark
‘Peace Maker’, prominently displayed on its label. Court placed reliance on
the judgment in Skechers USA INC v. Pure Play Sports (2016/DHC/4344)
where Plaintiff’s trademark was SKECHERS and Defendant’s mark was
PUREPLAY and Court had held that no doubt, the respective marks were
inscribed on the rival products but were not enough to dispel the confusion
arising from similar trade dress. Court also relied on another judgment of
this Court in Allied Blenders and Distillers Pvt. Ltd. v. Agribiotech
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Industries Limited (ABIL), 2020 SCC OnLine Del 2770 ( ‘ Allied Blenders-
II ’) wherein it was held as follows:-
“ 47. On merits, the claim of the plaintiff, prima facie, merits acceptance. A
bare comparison, of the label of the “Officers Choice” label used by the
plaintiff, vis-à-vis the “Chetak” label used by the defendant, reveals that
they are deceptively similar. In both the labels, (i) there is a gold line,
dividing the label into an upper and lower half, (ii) the lower half has a
red background, whereas the upper half as a white background, (iii) the
lettering, on the lower red half of the label, is in white, and the lettering, in
the upper white half of the label is in red, (iv) the placement of the
trademarks “Officers Choice” (in the case of the plaintiffs label) and
“Chetak”, in the case of the defendant's label, are similar, and covers a
major portion of the upper white half of the label and (v) both labels have
an outer gold border. The overall appearance of the two labels is, at a
plain glance, similar, and constitutes, therefore, similar trade dresses. The
two labels are, therefore, deceptively similar, as perceived by the man of
average intelligence and imperfect recollection.
48. The defendant in the written submission merely contends, in this
regard, that the name of the defendant's product was different from that of
the plaintiffs, there was the feature of a horse above the word “Chetak” in
the label of the defendant, and the packaging of the goods was different, as
the bottles were different in shape, size, and had different caps. These
features do not, however, prima facie, detract from the overall similarity in
the essential features of the labels used by the plaintiff and the defendant.”

40. It will also be useful to refer to the judgment of the Calcutta High
Court in Edible Products (India) Limited v. Shalimar Chemical Works
Private Limited, 2025 SCC OnLine Cal 9444, where it was held that use of
‘KMP’ as opposed to ‘Shalimar Coconut Oil’ loses significance in the larger
backdrop of the similarity in the packaging of the competing products.
Therefore, what emerges from reading of the aforementioned judgments is
that in passing off action, undoubtedly trade dress and getup of the
packaging constitutes an essential component of the goodwill and reputation
albeit the Plaintiff must show that general public associates the trade
dress/packaging with it, for seeking even prima facie protection in the nature
of interim injunction. Before concluding the discussion on trade dress qua
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passing off action, it would be instructive to refer to a few passages from the
judgment of this Court in Seven Towns Ltd. & Anr. v. M/s. Kiddiland &
Anr., 2016 SCC OnLine Del 5168 as follows:-
“ 45. In passing off, undoubtedly trade dress and get up of the packaging,
presentation of the product through label, etc. constitute essential
components of the goodwill and reputation of a commercial enterprise.
The case of William Grant & Sons Ltd. v. McDowell & Co. Ltd. (1994) 55
DLT 80 also supports such a proposition. Yet, for seeking even prima
facie protection in the nature of interim injunction there should be
material disclosing that the general public associates the shape in question
(which is asserted by the plaintiff as their distinctive mark or get up) only
with the plaintiffs. Whilst in the case of trade dress in the form of label or
mark, distinctiveness is easily discernable in the case of shape based trade
dress, the plaintiffs have to necessarily show that the get up of the
product or article has an integral association only with it. Unless this
requirement is pleaded and established, (and for interim injunction
purposes, at least prima facie) every product with a commonplace shape
would “ride” on the reputation of an exclusive trademark, based on a
distinctive name, label or color combination of the packaging or label, etc.
In this case, the distinctiveness of the shape of the product asserted to be
unique or solely associated with the plaintiffs has not been so pleaded and
established.
xxx xxx xxx
47. This Court in the case of Anglo-Dutch Paint Color and Varnish Works
Pvt. Ltd. v. India Trading House, AIR 1977 Delhi 41 (paras 11 and 12)
held as under:
“11. As to the extent and scope of the work “mark” as defined in
Section 2(j) of the Trade and Merchandise Marks Act, 1958, the
observations of Graham, J. in Smith, Kline & French Laboratories
Limited's Trade Mark : (1974) R.P.C. 91 (3) at page 95 may be
seen……
…….It was so in the Hoffmann-La Roche Chlordiazepoxide case,
(1972) R.P.C. 1 (4). …..At page 99 of the same judgment it was
observed by Graham, J. as under:
“I cannot see why other manufacturers should want to adopt the
applicants’ colour arrangements here except for the improper
motive of trying to benefit from the latter's established
goodwill.”
In this judgment, Garham, J. relied on the observations of Harman
Lord Justice in the Court of Appeal in the case of F. Hoffmann-La
Roche & Company A.G. v. D.D.S.A. Pharmaceuticals Limited : (1972)
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R.P.C. 1 (4). It is worthwhile to quote the words of Harman Lord
Justice at page 20:
“Goods of a particular get-up just as much proclaim their origin as
if they had a particular name attached to them, and it is well known
that when goods are sold with a particular get-up for long enough
to be recognised by the public as goods of a particular
manufacturer it does not matter whether you know who the
manufacturer is.”
12. As stated earlier, instead of receiving any satisfactory answer, I
received no answer from the defendants to the plain question as to
why they wished to mark their goods in violet grey and white. The only
answer which I could suggest to myself was that they have adopted the
colour-scheme in order to attract to themselves some part of plaintiff's
good-will and trade on their reputation and in fact to represent to
public that their goods are the goods of the plaintiff. This is exactly a
classic case of ‘passing off’.”
xxx xxx xxx
51. In Cadbury India Ltd. v. Neeraj Food Products, 142 (2007) DLT 724,
this Court while discussing the principle of dishonest adoption observed as
under:
“31. Holding that it is the points of similarity which have to be given
greater attention to than those of dissimilarity in 22 RPC
273 Munday v. Carey, it was held thus : -
“…where you see dishonesty, then even though the similarity were
less than it is here, you ought, I think, to pay great attention to the
items of similarity, and less to the items of dissimilarity.”
32. It would be also useful to consider the principles which were laid
down in 1996 RPC 697 Harrods Ltd. v. Harrodian School Limited
wherein it was held that the deception is the gist of the tort of passing
off and it is not necessary for a plaintiff to establish that the defendant
consciously intended to deceive the public if that is the probable result
of his conduct, nevertheless, the question why the defendant chose to
adopt a particular name or get up is always highly relevant.”
52. In Frito-Lay India v. Radesh Foods, 2009 (40) PTC 37 (Del.) this
Court laid down the Test of close proximity for determining dishonest
adoption in the following words:
“There are many combinations and permutations of designs, colours
and graphics that can be achieved and used in relation to packaging
designs…. It is clear that the defendants adoption and use of the
impugned packaging design is not a mere coincidence or an innocent
act but, a concerted and a deliberate attempt to achieve the maximum
proximity with the plaintiff's Lays packaging design. ….”
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xxx xxx xxx
55. The plaintiffs have given the details of the similarities between the two
products of the parties. The same are mentioned in para 24(d) of the
plaint, which are as under:
Sl. No. Rubik's Cube
manufactured and sold
by the plaintiffs.
Rancho's cubes
manufactured and sold
by the defendants
1. The entire cube consists
of 6 different coloured
stickers namely
particular shades of
green, red, blue, yellow,
white and orange
The entire cube consists
of different coloured
stickers namely particular
shades of green, red, blue,
yellow, white and orange
2. The sticker is square
shaped with rounded
edges
The sticker is square
shaped with rounded
edges
3. The black border/cage
consisting, of lines of a
particular width.
The black border/cage
consisting of lines of a
particular width
4. The puzzle is in the
shape of a cube and its
size is and each side has
9 stickers
The puzzle is in the shape
of a cube and its size is
and each side has 9
stickers
5. The shape of the
packaging which is
transparent is diagonal
which gives an
impression that 3
dimensional triangles
are bulging out of the
front and the back of the
box
The shape of the
packaging which is
transparent is diagonal
which gives an impression
that 3 dimensional
triangles are bulging out
of the front and the back
of the box
6. There are indentations
on the transparent
packaging forming a
grid corresponding to
the grid on the face of
the Rubik's cube
There are indentations on
the transparent packaging
Forming a grid
corresponding to the grid
on the face of the
Rancho's Cube
7. Label consists of a
combination of the
colours (red, blue,
green, orange and
Label consists of a
combination of the
colours (red, blue, green,
orange and yellow) as
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yellow) as well as
artistic features like the
distinct comic font with
each letter of the mark
in a different colour and
the words “Ages 8 to
Adult” placed on the
lower left hand comer of
the label.
well as artistic features
like the distinct comic font
with each letter of the
mark in a different colour
and the words “Ages 8 to
Adult” placed on the
lower left hand comer of
the label

56. Thus, irrespective of fact whether any case of infringement of
copyright has been made out or not, still the passing off action would lie if
a valid case is made out. In the facts and material placed on record, it
appears to the Court that the passing off action would lie.
57. While overruling the decision of S.M. Dyechem v. Cadbury India
Ltd. reported in (2000) 5 SCC 573 in the case of Cadila Healthcare
Ltd. v. Cadila Pharmaceuticals Ltd. reported in (2001) 5 SCC 73, the
principles laid down in Dyechem case (supra) that the prominence must be
given to the dis-similarities, the Supreme Court in Cadila case (supra)
after discussing the law laid down by the Supreme Court for the last years
and the Supreme Court had come to the conclusion that while comparing
the two products, it is essential that prominence should be given to
similarities rather, dis-similarities. In Dyechem case (supra) the similar
view was taken as in Kelloggs case. Thus in a way the view taken
in Kelloggs case (supra) and Dyechem case (supra) was not approved in
the subsequent judgment i.e. Cadila case (supra).
58. The arguments of the defendants are that no exclusivity can be claimed
in basic colors or the color black which forms the border/cage. The said
submissions have no force as the plaintiffs are not seeking protection in
any single feature but in the combination of all these features which
constitutes the get up of a product namely the combination of
shape/size/color-combination/black border of the squares etc.
xxx xxx xxx
61. It has been accepted by the House of Lords that if the defendant
attaches his own label to the prior user's trade dress then in such event far
from serving to distinguish the goods, the label would actually tantamount
to “. a deliberate appropriation of that get up as their own”. In other
words, merely using their own label on the plaintiffs' trade dress not only
causes deception but also has the consequence of diluting the plaintiffs'
goodwill in the trade dress.
xxx xxx xxx
64. Furthermore, it has also been held by this Court in N. Ranga
Rao v. Anil Garg, 2006 (32) PTC 15 (Del.) that the dictum in Kellogg's
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case to the extent it relied on the Schwepps case, would not hold good in
view of the subsequent development of the law in Cadilla. It was further
held that in any case the reasoning in Kellogg would apply only where the
customers can readily be characterised as “sophisticated and discerning”
and not in a case as the present.
65. Again in Sanjay Kapur v. Dev Agri Farms, 2014 (59) PTC 93 the
Single Judge of this Court distinguished the judgment in Kellogg's case as
having been passed in the peculiar facts of that case namely the trade
dress being entirely different. The Division Bench upheld this finding of
the Single Judge and further observed that it would not be correct to say
that “merely because a trademark [or label] is displayed on the packaging
material [or trade dress], even then notwithstanding a striking similarity
in the packaging material there would be no likelihood of deception”.
66. It is rightly submitted by the learned counsel for the plaintiffs that
marks/trade dress will always have points of dissimilarities. Where these
dissimilarities outweigh the differences, then it might be correct to say that
the trademarks/trade dress is not similar. Public interest is of utmost
concern in these cases and despite dissimilarities, if there is bound to be
consumer confusion, then trademarks/trade dress must be held to be
similar. Moreover, this argument goes totally contrary to the law laid
down by the Supreme Court in Cadila (supra) wherein it was laid down
that while comparing trademarks/trade dress, the focus has to be on
similarities and not dissimilarities, particularly when the trade dress has
acquired immense goodwill and worldwide reputation by virtue of long
and extensive user. It was further observed that it would be incorrect to
say that differences in essential features are at all relevant as has been
sought to be urged by the defendants. In other words all that is relevant
and has to be compared are the similarities in the trade dress and not the
dissimilarities.
67. The same view has been taken by this Court in Cadbury India v. Neeraj
Food (supra) wherein it was observed that the points of similarity which
have to be given greater attention to than those of dissimilarity and that
one has to pay great attention to the items of similarity, and less to the
items of dissimilarity (paras 31 & 32) .
xxx xxx xxx
70. Lastly, it was mentioned by the counsel for the defendants that without
prejudice, the defendants have offered to change the size of the coloured
stickers on the 6 faces of the cube from present ‘square’ to ‘circular’. On
such change to circular stickers, not only is the impression of any alleged
“black border/cage” completely unfounded, but also the look of the
defendants' product will become materially different from that of the
plaintiffs. The sample of the same was shown. The plaintiffs have rejected
the offer given by the defendants to alter/change its trade dress as counsel
for the plaintiffs upon instruction submits that the changes suggested by
the defendants may also amount to confusion and deception. He says that
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the black colour used in change/alter would create confusion and
deception as in many cases a child is bound to identify a toy by its trade
dress.
xxx xxx xxx
72. However, it is submitted by the learned counsel for the plaintiffs that
the present case is a classic example of how a defendant first seeks to
adopt the trade dress of the plaintiffs in entirety and then to satisfy the
Court seeks to introduce “variations in detail”. This approach is totally
flawed inasmuch as, it is observed by the Supreme Court in Parle Products
(P) Ltd. v. J.P. and Co. (1972) 1 SCC 618 that : -
“Moreover, variations in detail might well be supposed by customers
to have been made by the owners of the trade mark they are already
acquainted with”
73. The above observations have been followed by this Court
in Cadbury v. Neeraj Foods (supra).
74. The said approach is also totally contrary to the law laid down by this
Court in Colgate Palmolive v. Anchor Health (supra) wherein it was laid
down that that a second comer has to make every effort to stay as far away
as possible from the trade dress of a prior user and create its own
goodwill.
75. In view of the above explanation given on behalf of the plaintiffs and
the changes suggested by the defendants, I am of the view that without
going into the controversy as to whether the changes suggested about the
trade dress by the defendants or it should not be used in the market, it is
proper that the Court should not express any opinion at this stage as it is
the duty of the Court to decide the dispute in hand which is to be decided.
If the defendants wish to use any changed version, it is upto them and in
case of any complaint by the plaintiffs, it would be decided at that time. An
opinion cannot be expressed at this stage in view of non-agreement on
behalf of the plaintiffs. Thus, the present interim application is being
decided on the basis of material and facts before the Court.
76. As far as the impugned trade dress used by the defendants at the time
of filing of the suit, the plaintiffs have made a prima facie good case; the
balance of convenience also lies in favour of the plaintiffs and against the
defendants. The interim orders against the defendants have been operating
since about 5 years and 9 months. In case, the interim order is not passed,
the plaintiffs would suffer irreparable loss and injury. Under these
circumstances, the trial of the suit is expedited.
77. Till the disposal of the suit, the defendants, their servants, agents and
other persons on their behalf are restrained from manufacturing, selling
or marketing Rancho's Cubes on any other puzzles or toys with a similar
trade dress, get up and colour combination as Rubik's game of the
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plaintiffs and they are also restrained to pass off their goods as that of the
plaintiffs.”

41. Defendant No.1 also defended the passing off action on the ground
that Zarda is common to trade and relied on a list of documents showing
user by third parties. I have perused the documents and find no merit in this
argument for multiple reasons. Firstly, as noted above, case of the Plaintiffs
is essentially one of deceptive imitation of overall trade dress, get up and
visual presentation and Zarda may function as a memorable component in
consumer recollection, especially, when seen in the overall setting of
numerous other similar elements and add to the consumer belief that the
product belongs to or has some connection with the Plaintiffs. None of the
documents filed by Defendant No.1 reflect use of Zarda with a deceptively
similar trade dress as in the instant case by Defendant No.1. Be that as it
may, it is trite that Plaintiffs are not required to run after each and every
party. In Marico Limited (supra), Court held as follows:-
“54. As far as the defendants' argument that the colour blue is common to
the trade and/or the plaintiff has not taken legal action against such
similar infringers, this Court is of the view that the defendants have not
been able to prima facie prove that the said ‘infringers’ had significant
business turnover or they posed a threat to plaintiff's distinctiveness. No
sale figures of third parties using the blue colour bottles have been placed
on record by the defendant. Consequently, this Court at this stage cannot
presume extensive use of the blue colour by third parties.
55. This Court is of the view that the plaintiff is not expected to sue all
small type infringers who may not be affecting the plaintiff's business. The
Supreme Court in National Bell v. Metal Goods reported in (1970) 3 SCC
665 : AIR 1971 SC 898 has held that a proprietor of a trademark need not
take action against an infringer who does not cause prejudice to its
distinctiveness. In Express Bottlers Services Pvt. Ltd. v. Pepsi Inc.
reported in (1989) 7 PTC 14 it has been held as under:—
“….To establish the plea of common use, the use by other persons
should be shown to be substantial. In the present case, there is no
evidence regarding the extent of the trade carried on by the alleged
infringers or their respective position in the trade. If the proprietor of
the mark is expected to pursue each and every insignificant infringer
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to save his mark, the business will come to a standstill. Because there
may be occasion when the malicious persons, just to harass the
proprietor may use his mark by way of pinpricks…. The mere use of
the name is irrelevant because a registered proprietor is not expected
to go on filing suits or proceedings against infringers who are of no
consequence…. Mere delay in taking action against the infringers is
not sufficient to hold that the registered proprietor has lost the mark
intentionally unless it is positively proved that delay was due to
intentional abandonment of the right over the registered mark. This
Court is inclined to accept the submissions of the respondent No. 1 on
this point….The respondent No. 1 did not lose its mark by not
proceeding against insignificant infringers…”
56. In Dr. Reddy Laboratories v. Reddy Pharmaceuticals reported in
2004) 29 PTC 435 a coordinate Bench of this Court has held as under:—
“…, the owners of trade marks or copy rights are not expected to run
after every infringer and thereby remain involved in litigation at the
cost of their business time. If the impugned infringement is too trivial
or insignificant and is not capable of harming their business interests,
they may overlook and ignore petty violations till they assume
alarming proportions. If a road side Dhaba puts up a board of “Taj
Hotel”, the owners of Taj Group are not expected to swing into action
and raise objections forthwith. They can wait till the time the user of
their name starts harming their business interest and starts misleading
and confusing their customers.”

42. This view is also expressed by the judgement of the Division Bench in
Dabur India (supra) (DB) , holding that Plaintiff is the dominus litis and it is
upto it to decide whether an action against passing off is to be brought
against third parties as also by the Calcutta High Court in Edible Products
(supra).
43. In light of the aforesaid judgments, factual matrix brought forth by
respective parties and on comparison of the competing packaging/trade
dresses, I am of the prima facie view that Defendant No.1 has substantially
copied the trade dress/packaging of the Plaintiffs in an attempt to come as
close as possible and the use of the house mark DOUBLE CHABI is
insufficient to dispel consumer confusion for a commodity such as rice. The
entire basis of the trademarks regime is consumer confusion and public
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interest, which will be hampered if Defendant No.1 is permitted to sell its
product Golden Sella Basmati Rice in the impugned packaging and keeping
this in the backdrop and looking at the deceptive similarity in the competing
trade dresses, Defendant No.1 was rightly injuncted by this Court vide ex
parte ad interim injunction order passed on 01.08.2024 with liberty to
Defendant No.1 to carry on its business using different trade dress/
packaging, which is not identical/deceptively similar to Plaintiffs’
packaging. It was rightly emphasised that in case of edible products such as
rice greater sensitivity is required and the threshold of deceptive similarity is
far lower. Court finds no reason to vacate the said order in the given facts
and circumstances. The judgments relied on behalf of Defendant No.1, do
not aid in any manner in seeking vacation of the injunction order. Plaintiffs
have made out a case for passing off by prima facie demonstrating
substantial goodwill and distinctiveness in the packaging/trade dress and
hence the judgments in M.L. Brothers (supra) and Britannia Industries v.
ITC (2017) (supra), do not help. In view of the overall similarity in the
competing trade dresses, the house mark DOUBLE CHABI is not aiding in
distinguishing the two and thus the judgments in Intex Technologies
(supra) and Britannia Industries v. ITC (2021) (supra) are inapplicable.
44. The judgment in Pernod Ricard (supra) is also distinguishable on
facts since consumers of commodities such as rice cannot be equated with
consumers of high-end whiskies, which were found to be discerning
consumers by the Supreme Court in the said judgment. Judgment of this
Court in Sanjha Chulha (supra) is distinguishable on facts. The two issues
arising in the said case were prior user of the device mark ‘SANJHA
CHULHA’ as also whether registration of the device mark granted exclusive
right to the appellant to use the work mark ‘Sanjha Chulha’. The judgment
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in Rhizome Distilleries (supra), also does not aid Defendant No.1. In the
said case, the Division Bench was of the view that the two labels i.e.
IMPERIAL BLUE and RHIZOME Imperial Gold were totally dissimilar
and if a flat amber bottle was used by the defendants, no deception was
likely to arise.
45. In view of the aforesaid, Plaintiffs have made out a prima facie case
in their favour for continuing the ex parte ad interim order 01.08.2024 and
balance of convenience also lies in their favour and against the Defendants.
Ex parte ad interim order has been operation in favour of the Plaintiffs for
almost 2 years and if in the given facts, the same is not confirmed and
vacated, irreparable harm and injury shall be caused to the Plaintiffs.
Accordingly, till the disposal of the suit, Defendants and all others acting on
their behalf are restrained from selling, offering for sale and/or advertising
Golden Sella Basmati Rice in the impugned trade dress/packaging
,
which is confusingly and deceptively similar to Plaintiffs’ trade
dress/packaging
.
46. However, this will not preclude Defendant No.1 to carry on its
business for sale of Golden Sella Basmati Rice using trade dress/packaging
which is distinct and not deceptively similar to the trade dress/packaging of
the Plaintiffs. It is also made clear that Defendant No.1 shall not use the
packaging which were proposed to the Plaintiffs during the course of
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hearing as they were found to be deceptively similar to Plaintiffs’ trade
dress/packaging.
47. I.A. 35064/2024 is allowed and I.A. 40114/2024 filed by Defendant
No.1 for vacation of ex parte ad interim order is dismissed.
48. Both applications stand disposed of.
49. It is made clear that the views expressed in this judgment are only
prima facie and will have no bearing on the final adjudication of the suit.




JYOTI SINGH, J.
MAY 29 , 2026 /YA/S.Sharma
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