1. “Opal ware” has led to “Opal war” between two rival manufacturers; of which the petitioner is senior being in the trade since 1980s as compared to the respondent No. 1 who have entered the business of opal ware only recently in July, 2017. It is a fight between an established reputed opal ware manufacturer and a reputed manufacturer of Insulated Thermo-ware and writing instruments.

2. In this proceeding, an attempt by ‘Thermo-ware’ to enter ‘Opal-ware’ in relation to four marks with its trade dress and get up; and this is resisted by the petitioner. The petitioner complains of passing off.

3. In an action essentially for passing off, the plaintiff/petitioner have filed the application for injunction restraining the respondents from passing off their goods by using the trade dress and/or mark of the petitioner as shown in annexures “E” to “H” as that of their own trade dress and/or mark imprinted on their product as shown in annexures “M” to “P”.

4. I have advisedly used the word “essentially” as the petitioner in its affidavit-in-reply has disclosed two registration certificates by which two designs, out of the four designs of which the petitioner complains of passing off, have been registered during the pendency of this proceeding.

5. The petitioner claims to be a well-known and well-reputed manufacturer of Opel Glass Tableware since 1987.

6. The petitioner is in the business of manufacturing, marketing and selling opal glass tableware, crockery, cup, saucer, dinner set and also crystal ware based wares. The petitioner’s initial journey started with the manufacture of hurricane lamps and glass chimneys from recycled glass in 1980s. One Sri Sushil Jhunjhunwala whose family used to run the said business was smitten by opal glass products from France. He visited Korea in 1987 and used contacts to source the technology from Hosan glass and thereafter establish his first plaint in Madhupur. The petitioner from time to time expanded its manufacturing units to various places and has been exporting its crystal-ware and its crockery and tableware to various countries like USA, UK, France, Turkey, Middle East and South East Asian countries. The petitioner claims that from its initial days of manufacturing and marketing various types of tableware product, the petitioner has been experimenting and revolutionizing the market with its innovative shapes and configuration, surface patters, artistic getup of its product. The petitioner maintains full-fledged designing and art department which is involved in conceptualizing various artistic getup, innovative shapes and designs and surface patterns of its product through various modern technologies to give products a lasting and aesthetic look. The products having these aesthetic shapes and configurations and surface patterns are imprinted with artistic work conceptualized by the petitioner and the products with their distinctive shape, configuration, surface pattern and artistic work on it form a distinctive identity of their own, originating from the petitioner and as a whole forms a trade dress of the product. The said product having the trade dress is displayed on the packaging on the product. The distinctive trade dress originating from the petitioner has attained the character of a mark as a whole and the said mark is distinctive of the shape, configuration, surface pattern and the artistic work on the product of the petitioner. The products of the petitioner having these various trade dresses are also christened with brand names and/or marks such as DIVA CLASSIQUE - JUNIPER BLUE, LAVENDER DEW, FLUTED GREEN, TWILIGHT BOUQUET, MYSTRIO BLACK; DAZZLE PURPLE, CRIMSON BLOOM; DIVA IVORY – GOLDEN FALL, AUTUMN SHADOW, AMBER WILLOW; SOVRANA – REGENT RED, EMPRESS GREEN, ANASSA BLUE; QUADRA – SUNSHINE BLOSSOM, SNOWDROP, AUTUMNAL, etc. The petitioner has referred to the certain trade dresses and marks sold under the “DIVA”, “CLASSIQUE” and “IVORY” mark and claims that the said shape, surface