Dabur's Design Contest In Hair Oil Packaging

Author position:LEX ORBIS
Author:Ms Divya Subramanian
 
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Aggrieved by the dismissal of an

application filed under Order 39 Rules 1 and 2 CPC, Dabur India

Limited filed an appeal to the decision of the Ld. Single Judge of

the Delhi High Court, in Dabur India Ltd. v. Amit Jain

& Anr. {2009 (39) PTC 104 (Del.)}. Dabur claiming to

be the fourth largest fast moving consumer goods (FMCG) company in

India, and that they were in trade since 1884, filed this appeal in

pursuance to the design registration in the packaging of its hair

oil for the bottle and cap.

Among its various products, was

being marketed as Dabur Amla Hair Oil. Dabur stated that besides

vast sales in India, they had been exporting Dabur Amla Hair Oil to

various countries since 1884. Marketed in plastic bottles shaped

with a semi-circular shoulder with curvaceous back and front panel

tapering into each other, The Design being unique, aesthetically

novel and original was also registered under the Designs Act, 2000.

The green cap used in relation to the bottle also had subsisting

registration.

Dabur averred that the bottle was

introduced for marketing its hair oil in the year 2000, prior to

which Dabur Hair Oil was marketed in a glass bottles whose design

was also registered. Dabur averred that substantial expenditure on

advertisement and promotion of the Dabur Amla Hair Oil had been

made. On account of prior adoption, long and continuous use,

extensive advertising campaign and marketing network, enormous

sales, Dabur had acquired goodwill and reputation in the market and

the packaging came to be identified and associated exclusively with

Dabur's goods among consumers belonging both to rural and

semi-urban areas and townships. Dabur placed on record annual sales

figures of the Dabur Amla Hair Oil and Dabur Jasmine Hair Oil to

corroborate their ground.

In November 2005 Dabur found Amit

Jain, the sole proprietor of M/s. Vinayak Industries, Delhi to be

engaged in the manufacture and sale of Plus Jasmine Hair Oil and

Tushar Amla Hair Oil in bottles and labels deceptively similar to

that of Dabur'. The filed a suit in pursuance of alleging

infringement action and moved to seek an interim injunction. A

compromise was arrived at between the parties. The compromise

included admissions made and undertaking given by the Defendants,

acknowledging the validity of the Design Registration and undertook

not to use the impugned trade dress, label, etc.

Dabur consequently learnt that Amit

Jain had again started manufacturing and selling Plush Amla Hair

Oil in plastic bottles which according to them was obvious...

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