Delhi High Court Restrains Dabur From Selling Its ‘Cool King Thanda Tel’ In A Packing Similar To Emami’s 'Navratna Ayurvedic Oil'
The Delhi High Court has passed an interim order restraining Dabur from selling its ‘Cool King Thanda Tel’ in a packing confusingly or deceptively similar to Emami’s 'Navratna Ayurvedic Oil'.The bench comprising of Justice C. Hari Shankar noted that there was a clear attempt by Dabur to make its product appear similar to Emami’s Navratna Ayurvedic Oil and that prima facie, the same...
The Delhi High Court has passed an interim order restraining Dabur from selling its ‘Cool King Thanda Tel’ in a packing confusingly or deceptively similar to Emami’s 'Navratna Ayurvedic Oil'.
The bench comprising of Justice C. Hari Shankar noted that there was a clear attempt by Dabur to make its product appear similar to Emami’s Navratna Ayurvedic Oil and that prima facie, the same was intended to create confusion in the mind of an average consumer.
“In the present case, when one compares the products of the plaintiff and the defendant, it is prima facie apparent, in my considered opinion, that the defendant has consciously imitated nearly every essential and distinctive feature of the plaintiff’s product, apparently to capitalize on the goodwill and reputation earned by the plaintiff’s product over a period of time,” the Court observed while ruling that a clear prima facie case of passing off had been made out against Dabur.
Proceedings before the High Court
Emami Limited ("Plaintiff") filed a suit against Dabur India Ltd. ("Defendant"), for passing off and infringement of Emami's trademark, design and copyright with respect to its 'Navratna Ayurvedic Oil'.
The Court observed that Emami's Navratna oil has been in the market since 1989, whereas, Dabur's 'Cool King Thanda Oil' entered the market only in May 2023. The similarities between the two products when compared, both in bottle and sachet forms, are stark and glaring. Observing the similarities between the two, the Court said, “When one sees the two bottles, they are similar in shape, the slight difference in the two shapes being so imperceptible as not to impress itself on an average customer. The oil contained in both the bottles is red in colour”, adding that the use of red colour for oil was also lifted from the red oil used by Emami.
It has been concluded that there was a clear attempt by Dabur to make its ‘Cool King Thanda Tel’ product appear as similar to Emami’s Navratna Ayurvedic Oil as possible.
The Court remarked that in its prima facie opinion, Dabur consciously tried to copy the essential features of the getup and trade dress of Emami’s Navratna Ayurvedic Oil, so as to capture the market which the latter has assiduously developed since 1989. Therefore, Emami has succeeded in making out a prima facie case of passing off.
“At an ad interim stage, therefore, I am of the opinion that the plaintiff has succeeded in making out a prima facie case of passing off, by the defendant, of its product as the product of the plaintiff and a conscious attempt by creating confusion in the market by adopting a trade dress which is deceptively similar to the trade dress of the plaintiff,” the Court ruled.
Dabur also placed a changed packing of the product before the Court, however, the same has been rejected while observing that the changed packaging would also be infringing in nature.
Holding that Emami has clearly amassed considerable goodwill in respect of its Navratna brand, the Court passed the following interim order in its favour:
“Till the next date of hearing, the defendant is restrained from selling its product, in any manner, in the impugned packing or in any other pack, which is confusingly or deceptively similar to the impugned packing. The replication of the essential features of the pack, which have already been noted by me hereinabove, in any other alternative pack which the defendant proposes, would also tantamount to a violation of this order.”
Case Title: Emami Limited vs Dabur India Ltd.
Citation: 2023 LiveLaw (Del) 699
Counsel for the Plaintiff: Mr. Abhimanyu Bhandari, Ms. Charu Mehta, Ms. Roohe Hina Dua, Mr. Harshit Khanduja and Mr. Sahib Kochhar, Advs.
Counsel for the Defendant: Mr. Rajiv Nayar, Sr. Advocate with Mr. Anirudh Bakhru, Mr. Ankur Chhibber, Mr. Prabhu Tandon, Ms. Kripa Pandit, Ms. Navreet Kaur and Mr. Christopher, Ms. Pragya Choudhary, Mr. Vijay Laxmi Rathi and Mr. Umang Tyagi, Advs.