Important Point - This prima facie an attempt calculated to deceive and the deception and misrepresentation is as to source or origin.

1. The action is in design infringement and passing off. There is also a prayer in the suit for relief in passing off in relation to packaging. The design in question is of a plastic water bottle. The Plaintiffs (collectively, “Cello”) claim to have designed a unique water bottle —in the words of the Designs Act 2000, one that has both novelty and originality. This claim is based on the bottle’s shape, configuration and surface ornamentation. Cello says the Defendants (collectively, “Modware”) illicitly brought into the market a product that is indistinguishable in every single respect, down even to the colours of the water bottles. Though Cello makes no claim in the colour or colour combinations, Mr Tulzapurkar for the Plaintiffs makes a reference to the two-tone colour scheme of the water bottles only to show the extent of copying. He also points out that even the packaging adopted by Modware is so remarkably similar to Cello’s that it cannot be a mere coincidence.

2. The facts lie in a narrow compass. Both Plaintiffs are partnership firms. They are part of the Cello Group of companies. They make various types of plastic insulated products such as bottles, bowls and so on. The 2nd Plaintiff owns the house mark CELLO. It controls this for other group companies. The 1st Plaintiff manufactures and markets these products bearing the house mark.

3. Paragraphs 4 and 5 of the plaint speak to the Plaintiffs’ reputation and corporate track record. There is no dispute about this. Cello claims a high sales turnover and promotional expenses. I will accept this too as correct. There is no denial and no part of the defence is based on this.

4. The bottle in question is known as the PURO bottle. The Plaintiffs say it has a unique innovative, original and novel design. The novelty claimed is set out in paragraph 11 of the plaint and its sub-paragraphs:-

“11. The feature of novelty in PURO Bottle design resides inter alia in its overall shape, configuration and surface pattern making the said design aesthetically appealing and attractive. The characteristic features used by the Plaintiffs to impart distinctive design to the PURO bottle along with the cap manufactured by them are highlighted herein below:-

(1) The Plaintiffs’ PURO bottle has a unique shape, configuration and surface pattern;

(2) The configuration of the bottle is such that it appears as if the body of the bottle is divided into separate parts;

(3) The surface pattern of the bottle has a unique type of oval/egg shape curve, which looks aesthetically attractive. Unsymmetrical places reversed oval graphics on main body gives contemporary and unique impression to a bottle.

(4) Interplay of stepped up and stepped down surfaces creates unique surface pattern.

(5) Minimal yet clean and bold graphic elements makes PURO Bottle stand out in cluttered market place/against the competition.

(6) The flip cap of the bottle also appears that it has divided into two parts.

(7) The surface of bottle has a shining effect, which gives elegant effect to the PURO Bottle.

(8) The main body of the PURO bottle as also its cap contains a unique colour combination of two colours. (All above features of PURO Bottle, are hereinafter collectively referred to as “the said features”).

5. Cello says it created this bottle in-house in May 2016. It applied for registration with the Controller General of Patents, Designs and Trade Marks, who granted the application under Design Registration No. 283345 on 23rd August 2016 with a priority date of 12th May 2016. [Plaint, Exhibit “E”, pp. 104–110] Cello claims this bottle is unbreakable, leakproof and, being BPA-free, safe. In paragraph 18 of the Plaint, Cello says the aesthetic (i.e., the non-functional or capricious) elements in the design, including the surface ornamentation and the other unique features referred to earlier, have never been used in such combina