Document Fragment View

Matching Fragments

(d) In February 2003, the plaintiffs came to know that the defendants in their carton and packagings have misappropriated the plaintiff's 'COLGATE' dental cream trade dress in terms of lay out, get up and colour combination.
(e) The defendant's product is obviously inspired by the distinctive trade dress and reputation of the plaintiff's Colgate Dental cream packaging. The defendant No. 2 being a new entrant in the field is undoubtedly familiar with the plaintiff's product and their trade dress and has consciously chosen to copy the same from the most significant to the most minor details. The following significant features have been copied from the plaintiff's packaging:
(iv) UNFAIR COMPETITION The defendants, by copying the get up and the colour scheme similar to that of the plaintiffs, have surpassed norms of honesty and fair trade practices, which will lead to unfair competition as the defendants will ride on the success and reputation of the plaintiffs.
(v) DILUTION The use of deceptively similar trade dress by the defendants with respect to their products will lead to dilution, erosion and whittling away of the selling power, distinctive quality and value of the established trade dress of the plaintiffs.

7. Since the plaintiff's Colgate Dental Cream trade dress has a high degree of inherent distinctiveness by its extensive use over a long period of lime over a wide geographical area, the plaintiffs are entitled to protection against its violation by the defendants by adopting the impugned trade dress which will result in diminishing the reputation and goodwill attached to the plaintiff's trade dress and cause a reduction in the strong identification value thereof. Consequently, the plaintiffs have prayed for permanent injunction inter alia restraining the defendants from manufacturing, selling or offering for sale etc. the toothpaste, dental cream or any cognate product in red and white carton or any other packaging deceptively similar to plaintiff No. 1's Colgate Dental Cream label amounting to infringement of the registered trade mark Nos. 190279 and 319139. The prayer for rendition of account was also made, Damages to the tune of Rs. 5,00,000/- were also claimed.

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."