ITC LIMITED Vs. CRESCENDO TOBACCO AGENCY

JUDGEMENT

(1.) THE test is in the eye and, usually, it is over in a matter of moments. THE charade that follows is to ensure adherence to form and propriety. When the test is in the eye, the evaluation is one by impression. THE many words that may then be expended in support of the assessment are often the excuse for the impression; imperfect as language is to capture how the eye instructs the mind. An impression once formed is difficult to dislodge unless the legal basis for forming such impression is shown to be erroneous. Interlocutory injunctions in claims of passing-off are generally made or declined within a minute or so of the two products being presented, particularly when the claim is founded on a similarity in the get-up or trade dress.

(2.) BOTH the plaintiff and the second defendant are big in the cigarette industry; in fact, they are huge. The claim is not one that a fly-by-night operator has come to ride piggy-back on the goodwill and reputation of an established commercial giant in the field. The plaintiff maybe the bigger of the two and may have the wider range of products, even cigarettes, but the second defendant is no johnny-come-lately. Between these two parties they have seduced, charmed and thrown many a life up in smoke. The immediate theatre of conflict arises upon the plaintiff's perception that the second defendant has altered the get-up and packaging of its 'Special' brand of cigarettes to mimic the metallic red and flaming gold packet of the plaintiff's 'Gold Flake' brand of the same class of poison. The plaintiff suggests that in the second defendant's recent adoption of the pattern of colour combination and writing in respect of the packaging of its 'Special' brand, there is apparent dishonesty in trying to creep up to the appearance of the plaintiff's hallowed brand and appropriate the goodwill that is exclusively the plaintiff's. The plaintiff concedes that the names of the products are not identical, that the pricing of the two products are in different bands and that there are other features suggesting dissimilarity; but insists that a would-be customer of the plaintiff's 'Gold Flake' brand has every likelihood of being confused at the sight of the second defendant's 'Special' packet and be deceived into settling for that on the mistaken impression that it was the plaintiff's product.

(3.) THE plaintiff says that the test is not from the perspective of the habitual smoker alone who may be addicted to a particular brand. THE plaintiff contends that it is the first-time smoker or a casual smoker who has to be kept in mind while assessing the claim of passing-off since it may be assumed that the hardcore addict would seek a particular brand or, by long habit, be more discerning. THE plaintiff exhorts that the test must not be through the eyes of an educated urban consumer but from the point of view of an unsuspecting rustic who may intend to reach out for the plaintiff's product but end up getting the second defendant's and be none the wiser. THE plaintiff conjures up images of a dimly-lit countryside stall with little aid to tell the one packet from the other and suggests that if there is likelihood of confusion then, the plaintiff ought to obtain the injunction that it seeks.