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- in respect of the second, fourth and fifth advertisements, is that the appellant/ defendant had merely claimed that its product is able to remove odour from the toilet for up to 100 flushes, better than the ordinary toilet cleaners. In these advertisements, the appellant/ defendant had represented the ordinary toilet cleaners by display of a label-less toilet cleaner bottle. He submits that the shape of the toilet cleaner bottle is functional, and the respondent/ plaintiff cannot claim exclusive trade mark in the bottle shape since the respondent/ plaintiff had obtained composite registration of the bottle with the label. He submits that under Section 17, the exclusive right to use the mark - which consists of several matters, available to the registered owner is to "the use of the mark taken as a whole". He further submits that the appellant/ defendant had placed on record before the learned Single Judge, several other toilet cleaner bottles being used in the trade having similar shapes, and the respondent/ plaintiff had itself disclosed the market share of the competing brands, with their product trade dress as follows:

24. On the other hand, Mr. Lall submits that Mr. Sibal is not correct in seeking to invoke Section 17 of the Trade Marks Act. He submits that the respondent/ plaintiff has registered its bottle shape as a trademark. He submits that under the Trade Marks Rules, the respondent has submitted different outlines of its product which show that the registration of the device relates to the shape of the bottle.

30. Having heard learned senior counsels, we are prima-facie of the view that there appears to be merit in the submission of Mr. Sibal that the device mark registration obtained by the respondent/ plaintiff is in respect of several matters, namely shape of bottle, label, colour of the bottle and colour of the cap. That being the position, prima-facie it appears to us that the learned Single Judge could not have picked up only the bottle shape depicted in the advertisements of the appellant/ defendant and compared the same with the bottle shape depicted in the device registration obtained by the respondent/ plaintiff.

31. We also find that the learned Single Judge has not dealt with the argument of the appellant/ defendant with regard to the use of similar bottle shape by several other players in the field. Merely because their market share may be less, some of these products come from well-known consumer goods players such as Dabur & Emami. The submission that the bottle shape is functional, prima facie, appears to be correct, looking to the similar shape of all the other bottles used in the trade.