Point of Law: Copyright - Court, with the eyes of the hypothetical purchaser, and having regard to the rules governing comparison of marks, finds that there is even a likelihood of deception, the test of deceptive similarity is satisfied.

JUDGMENT :

This is a plaintiffs appeal in a suit for passing off and copyright infringement, challenging the common order dated 22.06.2021 passed by LXXXIV Additional City Civil and Sessions Judge, Commercial Court, Bengaluru (for short ‘trial judge’) on I.A.Nos.I to III in O.S.No.177/2021, allowing the defendant’s application (I.A III) for vacation of ex-parte interim order and refusing to grant the relief of temporary injunction on the applications (I.A.No.I and I.A.II) filed by the plaintiff.

2. The plaintiff had filed I.A.I seeking to prevent the defendant from passing off defendant’s wrapper as that of the plaintiffs. I.A II had been filed to temporarily injunct the defendant, pending completion of suit, from using a wrapper which has the effect of infringing the plaintiff’s copyright in its (plaintiffs) wrapper.

3. Though matter is listed for admission, by consent of learned Advocates, the appeal is admitted and is taken up for final disposal, since hearing the interlocutory applications filed along with appeal is as good as hearing the appeal on merits.

4. For purpose of convenience, the application is referred to as 'plaintiff' and respondent as 'defendant'.

5. The brief facts relevant or preface for the present dispute are crystallized herein below :

Plaintiff has stated in the plaint that it is one of India’s largest business conglomerates, having diversified presence across industries such as cigarettes, Fast Moving Consumer Goods, hotels, packaging, paperboards and specialty papers and agribusiness. It is stated to have launched itself into the manufacturing and sales of ‘instant noodles’ in September 2010, under the brand name, ‘Sunfeast YiPPee!’ and plaintiff manufactures, markets and sells under said brand different variant of noodles, including ‘Magic Masala’, ‘Mood Masala’, ‘Classic Masala’, to name a few. Plaintiff claimed protection from alleged misrepresentation and copyright infringement in respect of the ‘overall visual appearance’ (wrapper) of ‘Magic Masala’ variant of Sunfeast Yippee noodles. The wrapper of "Sunfeast Yippee Magic Masala" has the following look on the wrapper:

IMAGE

6. The defendant has pleaded in its written statement that it is an Indian company, established in the year 2002 and is engaged in the business of manufacturing, supplying, and exporting food products. The defendant-company is part of the global conglomerate – CG Corp. Global, which is considered to be a leading player in the FMCG and packaged foods segment. The defendant claims that it carries on its business globally in the instant noodles market under the brand name ‘WAI WAI’. It claims to manufacture two types of noodles – ready to eat noodles (white noodles) or brown noodles.

7. The plaintiff alleges that the wrapper adopted by the defendant for packaging, one of its white-noodles product, ‘WAI WAI Xpress Noodles Majedar Masala” is deceptively similar or nearly identical to its (plaintiff's) wrapper used for packaging ‘Sunfeast Yippee Magic Masala’ brand of noodles. Plaintiff claims that the action of the defendant has caused damage to its goodwill and reputation in the market and as such defendant has to be restrained from using same.

8. The visual appearance of defendants wrapper is captured below :

It is in this narrow factual setting, that the plaintiff has sued defendant and it bases its cause of action in passing off and copyright infringement.

9. Before we proceed to consider the submissions of the parties, it would be helpful to state facts which are not in dispute in the present appeal. The defendant does not dispute that the plaintiff commenced operations for sale of its ‘Magic Masala’ variant of Sunfeast Yippee noodles in 2010 and is therefore, admittedly, the prior user. The use of an image of a bowl of noodles on the defendant’s packet is not objected to by the plaintiff – as it is descriptive of the contents of the packet and therefore, common to the trade.

10. We have heard Sri K.G. Raghavan, learned Senior counsel app