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1. A chromatic monopoly in respect of red and white colours claimed by the plaintiff by virtue of the registration of its mark is the issue which arises in this application for interim relief which affects not only the large tooth paste market in India in particular but also the issue of exclusive rights to a particular colour scheme generally.

2. The plaintiff No. 1 Colgate Palmolive Co. Ltd. and Plaintiff No. 2 Colgate-Palmolive (India) Limited have filed the present suit for permanent injunction restraining infringement of trade mark and copyright, passing off, unfair competition, damages, rendition of accounts against the defendant No. 1, Director of Ajanta India Limited, and defendant No. 2, Ajanta India Limited.

Condition & Limitations:

History Date:

COLGATE - PALMOLIVE COMPANY (A CORPORATION organized UNDER THE LAWS OF THE STATE OF DELAWARE UNITED STATES OF AMERICA), COLGATE-PALMOLIVE BUILDING, 300 PARK AVENUE, NEW YORK 22, UNITED STATES OF AMERICA AND MERCHANTS, C/O CRAWFORD BAYLAY & CO., STATE BANK BUILDINGS, BANK STREET, FORT BOMBAY 1 DENTAL CREAM.

THE MARK IS LIMITED TO THE COLOURS RED AND WHITE, AS SHOWN IN THE REPRESENTATION ANNEXED HERETO."

(underlining supplied)

18. This certificate clearly shows that the registration vide trademark registration No. 190279 under Section 10 of the old Act pertains to the word COLGATE in white on a red background. The effect of such a certificate of registration and the averred infringement of that registered mark by the defendants are being considered in this judgment. The mark was limited to the colours red and white as shown in the representation annexed which representation clearly included the word/mark 'COLGATE'. This contradicts the plea of the plaintiff that the registration No. 190279 was limited only to colours red & white. The above registration shows that the word mark shown in the representation annexed was COLGATE. Thus the sentence in Annexure D "The mark is limited to the colours Red & White as shown in the representation annexed hereto" means the mark "COLGATE" limited to Red & White colours and not registration of red & white colour scheme on its own.

46. It was also held by this Court as under in Colgate Palmolive Co. v. Anchor Health and Beauty Care [2003(27) PTC 478 (Del)] :

"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, gel up, lay out and size of the 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 mind of the unwary customers particularly, those who have been using the product over a long period."

47. There were several other judgments cited by both counsel on the issue of passing off but in my view since the Hon'ble Supreme court has settled the law in Cadila Health Care's case (supra) and I have also extracted the position of law laid by this Court on almost identical facts in VICCO Laboratories case and Colgate Palmolive's case, it is not necessary to Page 1671 consider any other judgments for disposal of the present interim relief application. A perusal of two competing products as per the plaintiff's contention reveals as follows: