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Micolube India Limited vs Rakesh Kumar Trading As Saurabh ... on 15 May, 2013
8. After initial examination of the plaintiff‟s case, the impugned order
came to the prima facie view that the plaintiffs had been able to establish
that they had attained reputation and goodwill in their products and that the
defendant had committed acts of misrepresentation. The order also opined
that in an action for passing-off, it was essential that firstly, the design be
used as a mark and the people who are familiar with the products, are
immediately able to identify the products of the plaintiff‟s even without
plaintiff‟s name being mentioned thereon. It also opined that often, the
hallmark of all well-known designers is clearly evident and identifiable from
the manner in which they use different materials and fashion the products in
a unique form or style. Shapes help in determining and communicating the
choices people make. Therefore, design acquires an identity of its own and
is unique to its maker/manufacturer/owner. The infringement of the same
would be the liable for a judicial injunction. The Trial Court also referred to
cases in which defendants were restrained from use of a particular design on
fabric material3 and from using bottles of the same shape of the plaintiff‟s
bottles, on the ground of infringement of design and passing-off4. Apropos
the law on passing off-in designs, the impugned order refers to the decision
of this Court in Mohan Lal, Proprietor of Mourya Industries vs Sona
Paints & Hardwares and Micolube India Limited vs. Rakesh Kumar
3 Eicher Goodearth Pvt. Ltd. Vs. Krishna Mehta,
4 Cello Household Products vs. Modware India,
FAO 443, 445 & 446 OF 2017 Page 6 of 36
Trading as Saurab Industries & Ors. 200 (2013) DLT 322 which also held
that in passing-off, the plaintiffs would have to establish that (i) there is a
goodwill or reputation attached to the goods or services which the plaintiffs
offer, i.e. the purchasing public or the consumer is able to associate it or is in
a position to identify such goods or services with the plaintiff, by virtue of
the trademark used, these identifying marks could include the get-up, trade-
dress, design, packaging, label, etc. (ii) the defendant has employed
misrepresentation which has made the consumer believe that the defendant‟s
goods are those of the plaintiff‟s and lastly (iii) the defendant‟s action has
caused damage or is calculated to cause damage to the plaintiffs.
Smithkline Beecham Consumer ... vs Hindustan Lever Limited And Anr. on 2 August, 2001
In
Micolube India Limited (supra) the Full Bench held that dual protection may
exist under the two IPR regimes of Design law and Trademark law,
especially in case of the shape of an object; that while simultaneous
registration as a Trade Mark and Design was not permitted, there was no bar
1 Smithkline Beecham Consumer Healthcare GMBH v. Hindustan Lever Limited: 2000 (52) DRJ 55
2Micolube India Limited v. Rakesh Kumar & Ors.; CS(OS) No. 384/2008) & Mohan Lal vs. Sona Paint
& Hardware; CS(OS) No. 1446/2011) [2013 (55) PTC 61 (DEL)]
FAO 443, 445 & 446 OF 2017 Page 5 of 36
on a design being used as a Trade Mark after its registration. The Court,
therefore, held that dual protection under the design law and trade mark law
was permitted.
Section 11 in The Designs Act, 2000 [Entire Act]
M/S. Cello Household Products And Anr vs M/S. Modware India And Anr on 30 March, 2017
8. After initial examination of the plaintiff‟s case, the impugned order
came to the prima facie view that the plaintiffs had been able to establish
that they had attained reputation and goodwill in their products and that the
defendant had committed acts of misrepresentation. The order also opined
that in an action for passing-off, it was essential that firstly, the design be
used as a mark and the people who are familiar with the products, are
immediately able to identify the products of the plaintiff‟s even without
plaintiff‟s name being mentioned thereon. It also opined that often, the
hallmark of all well-known designers is clearly evident and identifiable from
the manner in which they use different materials and fashion the products in
a unique form or style. Shapes help in determining and communicating the
choices people make. Therefore, design acquires an identity of its own and
is unique to its maker/manufacturer/owner. The infringement of the same
would be the liable for a judicial injunction. The Trial Court also referred to
cases in which defendants were restrained from use of a particular design on
fabric material3 and from using bottles of the same shape of the plaintiff‟s
bottles, on the ground of infringement of design and passing-off4. Apropos
the law on passing off-in designs, the impugned order refers to the decision
of this Court in Mohan Lal, Proprietor of Mourya Industries vs Sona
Paints & Hardwares and Micolube India Limited vs. Rakesh Kumar
3 Eicher Goodearth Pvt. Ltd. Vs. Krishna Mehta,
4 Cello Household Products vs. Modware India,
FAO 443, 445 & 446 OF 2017 Page 6 of 36
Trading as Saurab Industries & Ors. 200 (2013) DLT 322 which also held
that in passing-off, the plaintiffs would have to establish that (i) there is a
goodwill or reputation attached to the goods or services which the plaintiffs
offer, i.e. the purchasing public or the consumer is able to associate it or is in
a position to identify such goods or services with the plaintiff, by virtue of
the trademark used, these identifying marks could include the get-up, trade-
dress, design, packaging, label, etc. (ii) the defendant has employed
misrepresentation which has made the consumer believe that the defendant‟s
goods are those of the plaintiff‟s and lastly (iii) the defendant‟s action has
caused damage or is calculated to cause damage to the plaintiffs.
Mohan Lal Proprietor Of Mourya ... vs Sona Paint & Hardwares on 15 May, 2013
8. After initial examination of the plaintiff‟s case, the impugned order
came to the prima facie view that the plaintiffs had been able to establish
that they had attained reputation and goodwill in their products and that the
defendant had committed acts of misrepresentation. The order also opined
that in an action for passing-off, it was essential that firstly, the design be
used as a mark and the people who are familiar with the products, are
immediately able to identify the products of the plaintiff‟s even without
plaintiff‟s name being mentioned thereon. It also opined that often, the
hallmark of all well-known designers is clearly evident and identifiable from
the manner in which they use different materials and fashion the products in
a unique form or style. Shapes help in determining and communicating the
choices people make. Therefore, design acquires an identity of its own and
is unique to its maker/manufacturer/owner. The infringement of the same
would be the liable for a judicial injunction. The Trial Court also referred to
cases in which defendants were restrained from use of a particular design on
fabric material3 and from using bottles of the same shape of the plaintiff‟s
bottles, on the ground of infringement of design and passing-off4. Apropos
the law on passing off-in designs, the impugned order refers to the decision
of this Court in Mohan Lal, Proprietor of Mourya Industries vs Sona
Paints & Hardwares and Micolube India Limited vs. Rakesh Kumar
3 Eicher Goodearth Pvt. Ltd. Vs. Krishna Mehta,
4 Cello Household Products vs. Modware India,
FAO 443, 445 & 446 OF 2017 Page 6 of 36
Trading as Saurab Industries & Ors. 200 (2013) DLT 322 which also held
that in passing-off, the plaintiffs would have to establish that (i) there is a
goodwill or reputation attached to the goods or services which the plaintiffs
offer, i.e. the purchasing public or the consumer is able to associate it or is in
a position to identify such goods or services with the plaintiff, by virtue of
the trademark used, these identifying marks could include the get-up, trade-
dress, design, packaging, label, etc. (ii) the defendant has employed
misrepresentation which has made the consumer believe that the defendant‟s
goods are those of the plaintiff‟s and lastly (iii) the defendant‟s action has
caused damage or is calculated to cause damage to the plaintiffs.
Eicher Goodearth Pvt Ltd vs Krishna Mehta & Ors on 29 June, 2015
8. After initial examination of the plaintiff‟s case, the impugned order
came to the prima facie view that the plaintiffs had been able to establish
that they had attained reputation and goodwill in their products and that the
defendant had committed acts of misrepresentation. The order also opined
that in an action for passing-off, it was essential that firstly, the design be
used as a mark and the people who are familiar with the products, are
immediately able to identify the products of the plaintiff‟s even without
plaintiff‟s name being mentioned thereon. It also opined that often, the
hallmark of all well-known designers is clearly evident and identifiable from
the manner in which they use different materials and fashion the products in
a unique form or style. Shapes help in determining and communicating the
choices people make. Therefore, design acquires an identity of its own and
is unique to its maker/manufacturer/owner. The infringement of the same
would be the liable for a judicial injunction. The Trial Court also referred to
cases in which defendants were restrained from use of a particular design on
fabric material3 and from using bottles of the same shape of the plaintiff‟s
bottles, on the ground of infringement of design and passing-off4. Apropos
the law on passing off-in designs, the impugned order refers to the decision
of this Court in Mohan Lal, Proprietor of Mourya Industries vs Sona
Paints & Hardwares and Micolube India Limited vs. Rakesh Kumar
3 Eicher Goodearth Pvt. Ltd. Vs. Krishna Mehta,
4 Cello Household Products vs. Modware India,
FAO 443, 445 & 446 OF 2017 Page 6 of 36
Trading as Saurab Industries & Ors. 200 (2013) DLT 322 which also held
that in passing-off, the plaintiffs would have to establish that (i) there is a
goodwill or reputation attached to the goods or services which the plaintiffs
offer, i.e. the purchasing public or the consumer is able to associate it or is in
a position to identify such goods or services with the plaintiff, by virtue of
the trademark used, these identifying marks could include the get-up, trade-
dress, design, packaging, label, etc. (ii) the defendant has employed
misrepresentation which has made the consumer believe that the defendant‟s
goods are those of the plaintiff‟s and lastly (iii) the defendant‟s action has
caused damage or is calculated to cause damage to the plaintiffs.
Allied Nippon Ltd. & Anr. vs M/S. Allied Motors on 21 May, 1999
23. It is the settled law that in such matters the appellate Court will not
interfere with the exercise of discretion of the court of first instance and
substitute its own view and discretion, except where the impugned order has
been shown to have been exercised arbitrarily or capriciously or where the
impugned order has ignored the settled principles of law regulating grant of
refusal of interlocutory injunctions. This Court in Allied Nippon Ltd. & Anr.
V. Allied Motors 80 DLT 38 (DB) has held as under:
Rajesh Batra vs Grandlay Electricals (India) on 13 December, 1996
"...4. There is no doubt that appeal against an order
granting ex parte injunction would be maintainable
under Order XLIII, Rule 1(r) read with Section 104 of
FAO 443, 445 & 446 OF 2017 Page 33 of 36
the Code of Civil Procedure, but the scope of hearing
such an appeal on the ratio of decision of a Division
Bench of this court in Rajesh Batra vs Grandlay
Electricals (India), 1997 1 AD (Delhi) 377 is limited. In
t he said decision it was held:
1