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We all have our favourites. And of course, recognizing our favourites from even long distances is not a task per se. In a way, we know how our favourite good is packed, the symbols and even the colours associated to it. For instance, a blue coloured pack flashes up in our mind while giving even a random thought about “Lay’s Magic Masala”. This leaves no doubt that “combination of colours” acquires distinctiveness and in all senses, is capable of protection under the trademark laws. Most simply regarded as “trade dress”, combination of colours directly relates a specific product to its origin. Be it Cadbury’s purple or Ferrero Rocher’s brown, any consumer of average mindset can draw links to its parentage. At the outset of this year, ITC faced a “trade dress” challenge against Godfrey when the latter adopted a similar outlook on its SELECT cigarettes. Lately, Bombay High Court showed red flags to Godfrey owing to high-similarity between the conflicting products.
Few days before the beginning of 2020, 110-year old Kolkata-headquartered multinational company, ITC Limited moved the Bombay High Court after witnessing an imitated version of their nationally renowned FLAKE range of cigarettes. Undeniably, the brand and both its genres, Red and Gold, have acquired acclaimed reputation all over India since its entry into the market. In point of fact, the sales figure crossed 10 digits in the last-to-last financial year with a contribution of over Rs. 3,675 crores from FLAKE REFINED TASTE.
ITC contended that Godrey Philips has blatantly copied and imitated its FLAKE brand, such that an exact replica has been pushed by them into the markets. Not just the design and pattern, but also the colour scheme has been mimicked. Concentric gold and red coloured arcs were visible on SELECT packs, which, on so many levels substantially resemble FLAKE. ITC attempted to divert the focus of Court towards the fact that before 2019, Godfrey’s SELECT was sold in an entirely distinct trade dress. It is from and onwards December 2019 that the rival deliberately adopted the impugned packaging.
The state of West Bengal and North-East India region is primarily focused, since the products were found conflicting in those specific areas.
Earlier this week, Hon’ble Justice Mr. BP Colabawalla sided with ITC and restrained the defendants from making use of any imitated artworks and trademark rights vested in FLAKE cigarettes with ITC. “It cannot be a matter of coincidence that the stylised “S” adopted in the present case is a substantial copy of the boomerang appearing on the plaintiff’s pack,” observed the Court.
It was ruled, “Looking at all this material, prima facie, I am of the opinion that the plaintiff is entitled to an injunction in terms of prayer for restraining the defendant from infringing the plaintiff’s copyright in its FLAKE REFINED TASTE pack.”