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1 - 10 of 16 (0.27 seconds)Gorbatschow Wodka Kg vs John Distilleries Limited on 2 May, 2011
12. It is not in dispute that the plaintiff has registered its design
vide aforesaid certificates of registration. The learned single Judge of this
Court in the case of Gorbatschow Wodka KG. v. John Distilleries
Limited (supra) had an occasion to consider the question of deceptive
similarity between two bottles of Vodka. It is pertinent to note that in the
said case though the plaintiff's design was not registered and was only
pending the application for registration and the Court was considering the
action for passing of, the Court on the question of similarity has observed
thus:
Section 4 in The Designs Act, 2000 [Entire Act]
Castral India Ltd vs Tide Water Oil Co.(India) Ltd on 9 March, 2010
In this context, it would be necessary to refer to the judgment of the
learned single Judge of the Calcutta High Court (Ruma Pal, J., as Her
Ladyship then was) in the case of Castrol India Ltd. v. Tide Water Oil
Co. (I) Ltd. (supra). In the said judgment also the contention was raised
that though there was similarity in respect of shape and configuration,
since there was no similarity in respect of proportion of the container and
colour used, the plaintiff therein was not entitled for the relief as claimed.
It was observed thus:
Section 19 in The Designs Act, 2000 [Entire Act]
Section 22 in The Designs Act, 2000 [Entire Act]
M/S. Kemp & Company & Another vs M/S. Prima Plastics Ltd. on 18 September, 1998
In that view of the matter, I
find that the present case would fall under the exceptions which are
carved out by the learned single Judge in the case of Kemp and Company
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v. Prima Plastics Ltd. (supra) and would also be covered by the
judgment of learned single Judge of this Court in the case of
Gorbatschow Wodka KG. v. John Distilleries Limited (supra) and of
Calcutta High Court in the case of Castrol India Ltd. v. Tide Water Oil
Co. (I) Ltd. (supra). I am of the considered view that applying the test
"judged solely by eye", the defendant's product is an imitation of the
plaintiff's design.