Document Fragment View

Matching Fragments

9. The comparative charts of various products of the plaintiffs and that of the defendants as well as of few others in the trade like Pepsodent and Dabur have also been placed for the purpose of comparative study as none of the other rivals in the trade has adopted the same colour scheme, combination or get up and the shape of the container and, therefore, the act of the defendants is against the norms of fair and accepted trade practices which act will inevitably lead to dilution and erosion of the uniqueness and distinctiveness of the trade dress of the plaintiff's goods. Statement has also been filed to show the rise in the sale of the products of the defendants after the colour combination, the trade dress as well as the shape of the container was copied by the defendants in selling the same goods. Thus according to the plaintiffs this amounts to infringement of trade mark and passing off its products. It is pertinent to mention here that the colour scheme red and white has been registered in respect of tooth paste.

45. While emphasizing the significance of trade dress Mr. Sibal vehemently contended that trade dress involves the total image of a product and includes features such as size, shape and graphics and needs to be protected like trade mark. Such a doctrine was enunciated in Vision Sports, Inc. v. Melville Corp. 12 USPQ 2d 1740 like this-

"In contrast, trade dress involves the total image of a product and "may include features such as size, shape, colour combinations, texture, or graphics. Trade dress protection is broader in scope than trademark protection, both because it protects aspects of packaging and product design that cannot be registered for trademark protection and because evaluation of trade dress infringement claims requires the court to focus on the plaintiff's entire selling image, rather than the narrower single facet of trademark.

54. 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, get up, lay out and size of container is sort of trade dress which involves overall image of the product's features. There is a 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.

58. As in Hudson's case, for non-speaking English, purchasers get up was held to be all important. In the instant case for unwary, illiterate and gullible customer, who is as good as non-English knowing purchaser, trade dress in the form of colour combination of Red and White in that order and proportion is all pertinent and relevant and nothing else. Distinctive differences in name is of no significance. Reason is simple. If an illiterate servant or village folk goes to the shop with the instruction to bring Colgate Tooth Power having a container of particular shop with trade dress of colour combination of Red and White in 1/3 and 2/3 proportion he will not be in position to distinguish if he is handed over "Anchor" Tooth Powder contained in a container having the identical trade dress and colour combination of "Red and White"in that order and proportion. Confusion is writ large as to source and origin as the difference in name will not make any difference to such a customer and the goods of the defendant can easily be passed off as goods of the plaintiff.