VICCO LABORATORIES Vs. EKCCO HERBS INDIA

JUDGEMENT

(1.) A complaint/petition has been filed on behalf of the applicant/complainant, Vicco Laboratories charging the respondent, Ekcco Herbs (India) with adoption of and indulgence in unfair trade practices and alleging therein that the respondent has launched its product 'primo Vajardanti' tooth powder and to promote its sale, has used identical shape, size and colour of the container/bottle as that of the Vicco Vajardanti of the applicant/complainant. It has been further stated that the applicant/complainant is a manufacturer of various aurvedic products and medicines and 'vicco Vajardanti' tooth powder is one of its products registered with the Registrar of Trade Marks since 18th May, 1982 and has, over a period of time, carved a niche for itself in the market and has gained consumer acceptance. It has been stated that the respondent by using the identical colour, size, shape of the container/bottle and also the colour of the tooth powder has adopted an unfair and deceptive trade practice with a view to misleading and confusing the consumer into buying its product under the mistaken belief that he is purchasing 'vicco Vajardanti', the product of the applicant/complainant.

(2.) An application for interim relief under Sec.12a of the MRTP Act, 1969 (the Act for brief) has also been filed for injuncting the respondent from manufacturing and selling its product, 'primo Vajardanti' and also from using the same colour, size, shape and printing on the bottle/container and also the trade name 'primo Vajardanti' especially 'vajardanti' as that of the applicant/complainant.

(3.) A notice in respect of both the complaint/petition and the interim relief application was issued to the respondent. The respondent, in its reply, while denying the charge of unfair trade practice, has stated that the present proceeding is not maintainable before this Commission as an equally efficacious remedy is available to the applicant/complainant under the specific statutes namely, the Trade and Merchandise Marks Act, 1958, the Copyright Act, 1957, the Designs Act and the Patents Act. It has also been stated that the complaint/petition and the allegations contained therein regarding similarities in the shape, size, colour etc. of the bottle, are to be construed as passing off the goods in similar trade dress for which a suit can be filed under Sec.105 of the Trade and Merchandise Marks Act, 1958 in the District Court having jurisdiction to try the suit arising from the use of any trade mark which is identical with or deceptively similar to a mark which is either registered or unregistered.