Delhi HC order Pioneer Herbals to change of their trade dress to avoid infringement of the former’s rights.

By
Tushar Gulati
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pioneer herbal

NEW DELHI: In the recent Judgment of BAJAJ RESOURCES PRIVATE LIMITED & ANR. V PIONEER HERBALS & ORS. Delhi HC directs the Pioneer Herbal to consider a change of their trade dress to avoid infringement of the former’s rights. The case was filed by hair oil manufacturer company Bajaj Resources Pvt Ltd for infringement of a trademark in their hair oil product “Bajaj Almond Drops”.  The order was passed by Justice Prathiba M Singh.

During a hearing, He observed – “In view of the facts of the present case and the above legal position, this Court is prima facie of the opinion that if the Plaintiffs’ and the Defendants’ products are stocked together in any shop or retail outlet, there is a clear likelihood of the pioneer herbal’ product being associated or connected with the Plaintiffs’ or confused with the Plaintiffs’ products…Considering the fact that the case of the Defendants is that they have been using these containers and labels since 2013, this Court is inclined to grant time to the Defendants to revert with instructions as to the time that may be required for changing over from using the containers with the impugned trade dress.”

Plaintiff counsel pleaded that the Bajaj Almond Oil bottle containing the unique shape of the container, the brown color cap along with the ‘U’ shape label, with the words “Bajaj Almond Drops” written with droplets replacing the letter ‘O’, is a registered mark since 2007. They told the court that Defendants have adopted the infringing “Pioneer Almond Care” label and container for its non-sticky hair oil, the trade dress of which is almost identical to the trade dress of Plaintiffs’ product.

The counsel for the plaintiff also informed the court that a different container was being used by the Defendants earlier as per the promotional video of the Defendants’ product where the shape of the bottle, label, and other artistic features were totally different.

Contrary, in defense the defendant argued that the cause of action had arisen last year when a cease-and-desist notice was issued by the Plaintiffs calling upon the Defendants to immediately desist from using the impugned container and label. But the products of the Defendants with the impugned trade dress have been available in the market since 2013.

After a healthy argument in the court, the Court observed that the features of the defendant’s container, are similar to that of the Plaintiffs’ trade dress.

Court also noted that the defendant’s products are nothing but a substantial and colorable imitation of the plaintiff’s mark. “It is the settled position in law that when comparing products of this nature especially, which are consumer goods, the Court is not to compare the differences, but to see the overall get up, trade dress and the look and feel of the products,” Court said and gives the next date of hearing on 20th May 2022.

Therefore, considering that the defendant has been using these containers and labels since 2013 the court granted him time to seek instructions about the time that may be required for changing over from using the containers with the impugned trade dress as also for producing the stock statement of the existing stocks of the products

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