In recent pandemic times people have changed their way of living and so has changed the buying behaviour of the products. It has created variations in both areas of hygiene and immunity areas.
But there is a third zone that was made like recently dabur has launched its soap bar similar to the shape of Dettol soap bar both in odour and shape, therefore, Reckitt Benckiser company filed an infringement suit against Dabur in Delhi High Court.
Brief Facts about Case
The Plaintiff (Reckitt Benckiser Health, US LLC and its Indian Subsidiary RB Health) approached the High Court of Delhi seeking a permanent injunction against Dabur to restaurant Dabur from violating its Trade dress / packaging and passing off of Plaintiff’s products.
Plaintiffs are involved in FMCG products and its soap mar is heavily marketed in Indian markets. Plaintiff submitted that they have adopted the tagline of “be 100% Sure)” and sword device in the year 1999-2000 and 2003. They submitted that Dabur has violated its trade dress/ packaging in their newly launched soap bar named “Sanitize”. Plaintiff argued that Defendants knowingly have adopted sword device, similar Trade dress and packaging as of Plaintiffs. This clearly shows the dishonest and deceitful intent of Dabur to confuse the consumers.
On the other hand Dabur argued in its defense that Plaintiffs have no exclusive right over the green colour packaging and its orange colour soap bar and to its sword device, and on the generic Tagline. Dabur further stated that in the field of disinfectant there are very limited colour available and are thus very common to trade.
Dabur further stated that the soap of Dabur is very easily distinguishable from the plaintiffs soap without infringing any mark. Dabur further claimed that the plaintiff itself has used multiple colours for the Dettol Soap packaging and that therefore the claim of exclusivity with respect to the green colour is itself flawed. Dabur at the end argued that its packaging is totally different from the plaintiff soap bar as it contains labels of dabur and therefore it cannot create confusion in the minds of the consumers.
What constitutes Design Infringement?
As per Designs Act, 2000, the piracy of registered Design is deemed to be an infringement of Design in India. The rules relating to the piracy of registered Designs in India ares et out in section 22 of Designs Sct, 2000. Any fraudulent or apparent imitation of a design that is already registered, without the permission of the owner or proprietor of the registered Design is unlawful under section 22 of the Designs Act, 2000. It also prohibits the registration of similar designs, and any registration of such design would amount to Design infringement.
The following are the circumstances mentioned in the Act which constitutes Design Infringement:
- The infringing Act is committed during the existence of a copyright in any Design.
- Without the prior consent of the registered owner or proprietor, the Design is imitated or applied.
- The act is done for commercial purpose and not for any personal use.
- The infringing articles must belong to the same class as that of the registered Design.
Does the Act of Dabur Commits Design Infringement?
The soap Sanitize has following features which are distinct from the Dettol Soap-
- The packaging of the soap is in the dark green colour which is different from the Dettol Soap as it uses light green colour and white colour.
- The Packaging consists of a sword device which differs from the Dettols’s Plus sign.
- Although the colour of both the soap are similar but one cannot claim its exclusivity over a particular colour as it is very common.
- The “sanitize” soap used the Tagline”Let’s be 100% sure” is similar to the Dettol but the same is very generic and can be used by others.
The court of law also considers that the soap “Sanitize” boldly bears the mark Dabur which differs the product from the plaintiff product and there will also not be any chances of confusion in the mind of consumers.
Court observed that since Dettol has not taken any registration of its soap barcolour, odor or smell and taglines till yet. The court held that there is no evidence shown by the plaintiffs which can prove its similarity in the market. The court observed the difference in the packaging of both the products. Therefore the court refused the grant of injunction in favour of plaintiffs. Holding that “even a person with imperfect memory could not confuse Dabur’s product with that of the Plaintiffs.