CASE OF THE PLAINTIFF
2. The present suit pertains to trade mark comprising trade dress and
get-up of DABUR SHILAJIT GOLD packaging which ... GOLD packaging including their colour combination,
arrangement of features, overall layout, trade dress and get-up has acquired
distinctiveness, goodwill and reputation which ought
accepted trade practices which act will inevitably lead to dilution and erosion of the uniqueness and distinctiveness of the trade dress of the plaintiff ... trade mark. Such a doctrine was enunciated in Vision Sports, Inc. v. Melville Corp. 12 USPQ 2d 1740 like this-
"In contrast, trade dress
judicial pronouncements relating to an action for passing off based on trade dress and in legal texts on trademark. It has been observed by Kerly ... trade mark of the plaintiff is associated,a re the same or similar;
(vi) that the user of the same trade mark or trade name
trade
mark VIAGRA but also extends to its blue
diamond tablet shape and colour. The trade
mark and distinctive trade dress are
universally recognised ... traded upon and threatened to
further trade upon the significant and valuable
goodwill in the VIAGRA mark and distinctive blue tablet
trade dress; (b) have
inherent distinctiveness and has retained a recognizable uniformity and constitutes a trade dress in relation to plaintiff's product for over a period ... have misappropriated the plaintiff's 'COLGATE' dental cream trade dress in terms of lay out, get up and colour combination
prevent passing off or
infringement of copyright in so far as trade dress, packaging and instructions are
concerned, which according to the plaintiffs, are identical ... Trade Marks Act would bring within its ambit
even colour combinations/ trade dress, the following judgments are cited:
Smith Kline & French Laboratories
against the respondent. The dispute pertains to trade mark, emphasis being on trade dress. Though reference is made in the grounds of appeal ... Copyright Act, arguments were mainly focussed on 'trade dress'.
2. The appellant Kellogg's Company sells Corn Flakes with cartons which describe
unqualified or clear
admission of similarity of the bottle design, trade mark, or trade dress.
47. She further submits that on the aforesaid aspect ... other suit raises the other issues, including of trade
mark infringement and trade dress passing off. Ms. Singh submits that
while examining the issue
defendants are passing off their goods and they are imitating the trade dress in making the suit cases to sell their products. The defendants resist ... artistic work."
4. About the passing off and trade dress the plaintiffs would put their case thus :-
"The plaintiffs submit that the travel
addressed, viz design
infringement; copyright infringement; passing off of trade dress, trade name
etc and unfair competition and unfair trade practices.
8. As to design ... confined to
a claim of a trademark; it covers trade dress, product shape, packaging,
colour, visual and overall representation of the article to the consumer
