DABUR INDIA LTD Vs. M/S. LAXMINARAYAN INDUSTRIES

JUDGEMENT

(1.) This is a suit seeking permanent injunction against infringement of copyright and passing off. The plaintiff has also prayed for rendition of accounts and delivery up of all infringing products with respect to the plaintiff's packaging under the trademark "DABUR RED TOOTH POWDER" (English) or "DABUR LAL DANT MANJAN" (Hindi) in respect of tooth-powder, alleging that the arrangement of features, lay out, colour scheme of the defendant's container and pouch, is substantially an imitation of their artistic work. Further, the plaintiff prays for compensatory damages to the tune of Rs. 20 lakhs. The brief facts are as under.

(2.) The plaintiff has been manufacturing and marketing DABUR RED TOOTH POWDER since 1984, in distinctive packaging comprising colour combination of red, yellow and white. The background colour of packaging has always been red with descriptive features such as "LAL DANT MANJAN" or "RED TOOTH POWDER", appearing in yellow and trademark Dabur appearing in white. A portrait of a family i.e. a man, a woman and a child appears within a yellow coloured oval device. It is also submitted that the said packaging is already registered under Copyright Registration No. A- 49342/88. The plaintiff states that on account of extensive sales, promotional campaigns including television commercials, excellent quality control and consumer feed-back, the plaintiff's DABUR LAL DANT MANJAN packaging/pouch comprising of the trade-dress described above, have acquired distinctiveness so as to indicate trade origin and source of the plaintiff's business qua these goods. The said trade dress constituting the plaintiff's trademark has acquired goodwill and reputation in the market amongst consumers at large.

(3.) In the second week of March 2005, the plaintiff, through their sales representative in the market at Delhi, learnt that the defendant is manufacturing and marketing its tooth powder in packaging/pouch, reproducing the colour combination, get-up and arrangement of features, as are distinctive of the plaintiff's product. The essential features of the impugned packaging are purportedly as follows: