Anglo-Dutch, Colour & Varnish Works Private Limited v. India Trading House
PTC (Suppl) (2) 585 (Del)
Plaintiff was one of the leading manufacturers of superior white zinc paint under trade mark 1001. The salient features of the Plaintiff’s trade mark were the numeral 1001 appearing in bold type in grey lettering on a white circle along with the expression ‘Superior White’ on top and ‘ZINC PAINT’ on the bottom in the circle. The white circle with its grey lettering was super imposed on violet background with white parallelogram shapes on Top and base borders. On the white parallelograms, again, the numeral 1001 appeared in grey lettering.
Defendant’s product depicted numeral ‘9001’ appearing in bold type in grey lettering on a white circle along with the expression ”SUPERIOR WHITE’ on top and ‘ZINC PAINT’ on the bottom in the circle. The white circle with its grey lettering was super imposed on violet background with white triangular shapes on top and base borders. On the white triangles, the numeral 9001 appeared in grey lettering.
Get-up, layout, arrangement and violet, grey and white colour combination of the Plaintiff’s container is unique and distinctive as represented in a special manner.
The get-up, layout, arrangement and violet, grey and white colour combination adopted by the Defendant are in order to cause confusion and constitutes passing off and infringement of Copyright.
Size and colour shade of the Defendant’s container is different as compared to that of the Plaintiff.
Defendant’s containers have its lion brand and a monogram and trade style description entirely distinct and different and the plaintiff’s container.
The main thing in the Plaintiff’s mark was the number; 1001 whereas it is 9001 in Defendant’s product.
The colour combination is not descriptive but is distinctive. A dealer can, have a trade-mark in combination of colours though not on an individual colour. The combination of violet background and a large circle with white background and grey lettering is distinct combination of colours, and there is no legal bar to a person acquiring a trade-mark in such combination of colours for his containers.
Container of the Defendant is practically identical to that of the plaintiff except that instead of 1001, the defendant has adopted 9001. The entire get-up is similar.
It is true that there is a phonetic difference between the numerals ‘1001’ and ‘9001’ but taking into account the entire get-up, the combination of colours it will be noted that the essential features of Plaintiff’s containers have been copied.
The Defendant has used the Plaintiff’s trade-mark only for three months and the balance of convenience is in favor of the Plaintiff.
Acts of the Defendant constitute ‘passing off’ as well as infringement of Copyright.
Defendant was injuncted from dealing in white zinc paint under the containers bearing numeral ‘9001’ having the colour combination of violet, grey and white as those of the applicant’s containers bearing numeral ‘1001′ and from ‘passing off’ the goods as those of the applicants in any manner.