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Passing Off in Relation to Similar Background Colour of Product Packaging

The doctrine of passing off is a vital aspect of intellectual property law, primarily aimed at protecting the goodwill and reputation of a business. This legal principle prevents one party from misrepresenting their goods or services as those of another, thereby misleading consumers. A recent case that highlights this doctrine involves the plaintiff, Upakarma Ayurveda, and the defendant, Rasayanam, focusing on the similarity in the background colour of their product packaging. The case underscores the significance of trade dress and the potential for consumer confusion arising from similar packaging designs.

Case Background:
The plaintiff, Upakarma Ayurveda, holds a registered device mark for "UPAKARMA AYURVEDA PURE SHILAJIT." The plaintiff's grievance centers on the defendant's use of the mark "RASAYANAM PURE SHILAJIT," specifically the similarity in the background colour of the packaging. The defendant, during the pendency of the proceedings, obtained registration for their device mark "RASAYANAM" (Registration No. 4591737 in Class 5) on a 'proposed to be used' basis. The crux of the plaintiff's complaint was not the usage of the word mark "RASAYANAM" but rather the defendant's use of a similar trade dress, which included a similar background colour.

The Importance of Background Colour:
In this case, the court emphasized the importance of background colour in the packaging of consumer products. The background colour plays a crucial role in consumer perception, particularly when products are stacked side by side on supermarket or shop shelves. An average consumer, with imperfect or hazy recollection, might be deceived into picking one product over another due to the similarity in background colours, thus falling within the realm of passing off.

The plaintiff contended that their product's packaging, which used a light beige/skin colour (Hex: FCE7CC), was adopted prior to the defendant's use of a similar shade. The defendant argued that their packaging used a light green colour, dark shade (Hex: F0E8B7). While technically different, the court acknowledged that the colour shades were similar enough to cause confusion at a casual glance.

Legal Analysis
The court's analysis focused on several key aspects:

Consumer Confusion:
The primary concern was the likelihood of consumer confusion due to the similar background colours. The court noted that the similarity in packaging could mislead consumers, particularly those with imperfect recollection, into believing the products originated from the same source.

Trade Dress and Deceptive Similarity:
The court examined the overall trade dress of the products, including the background colour, and concluded that the defendant's packaging was deceptively similar to the plaintiff's. This similarity, combined with the identical nature of the products, increased the potential for consumer confusion.

Injunction and Remedies:
The court observed that the defendant had introduced a new packaging for their 10gm product with a distinctive dark brown colour, which the plaintiff did not contest. This indicated that the defendant could use different packaging without infringing on the plaintiff's trade dress. The insistence on using a beige or similar background for the 20gm product was deemed unnecessary and likely to cause confusion.

The court ultimately granted an injunction in favor of the plaintiff, Upakarma Ayurveda, restraining the defendant, Rasayanam, from using the similar background colour in their product packaging. This case underscores the significance of trade dress in protecting the goodwill and reputation of a business. It highlights the importance of distinctive packaging in preventing consumer confusion and upholding the principles of fair competition.

In essence, the case reiterates that even subtle similarities in packaging, such as background colour, can lead to passing off claims if they create a likelihood of consumer confusion. Businesses must be vigilant in designing their product packaging to ensure it is distinctive and does not infringe on the trade dress of others. This case serves as a crucial reminder of the complexities involved in intellectual property law and the need for careful consideration of all elements that contribute to a product's identity in the marketplace.

Case Citation: Upkarma Ayurveda Vs Rasayanam Enterprises: 22.03.2024: CS COM 834 of 2024 : 2024:DHC:2374:Delhi High Court: Anish Dayal, H.J.

The information shared here is intended to serve the public interest by offering insights and perspectives. However, readers are advised to exercise their own discretion when interpreting and applying this information. The content herein is subjective and may contain errors in perception, interpretation, and presentation.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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