The main legal point established in the judgment is the application of passing off and intellectual property rights principles to determine visual similarity, deceptive imitation, and the distinctiveness of sub-brands.

( 1 ) THIS interim application for interim injunction has been filed in the suit averring violation of intellectual property rights of the plaintiff by the defendants. The plaint avers as follows:-

(A) The plaintiffs had launched the Maggi Sauce in 1985 originally comprising of tomato and hot and sweet variants. In 1987 Chilli Garlic and Masala Chilli variants were also introduced. The dispute arises on account of the defendants mala fide imitation of 200 grams bottles in the variants `hot and Sweet , `chilli garlic and `masala Chilli marketed by the plaintiff since 1985 and 1987 respectively.

(B) The plaintiff s case is based upon what it avers to be its bottles which are distinctive in shape and size and have yellow coloured striated caps. The bottles have one smaller neck label and one large label on the body of the bottle. The plaintiff is a large trading concern, trading all over the world and had built an enviable reputation due to extensive advertising and other modes of communication including successful television commercials.

(C) The plaint was filed on account of the defendants marketing 200 grams bottle with identical three variants, namely, `hot and Sweet , `chilli Garlic and `masala Chilli with effect from 7th April, 2003.

(D) The plaintiff s case is that the product of the defendant as indicated by substantially similar labels, identical bottle shape, identical get-up, packaging and overall appearances tends to deceive a customer and the adaptation of the plaintiff s feature is a conscious mis- representation. Passing off results in not only when actual confusion occurs but can arise on account of the initial interest confusion which arises when a customer evinces interest in the defendant s products due to the adaptation of the plaintiff s feature by the defendants.

(E) The defendant is thus resorting to unfair competition by adaptation of impugned labels, names and the trade dress by the defendants similar to that of the plaintiff and using the plaintiff s goodwill to enrich itself unjustly. That copyright of the plaintiff was violated by the adaptation of the plaintiff s label by the defendant.

(F) The overall similarities and the copying of the series of products marks and get up is likely to cause confusion and the plaintiff is thus entitled to an injunction on account of the law laid down by the following judgments:- a) Laxmikant V. Patel v. Chetanbhai Shah and Anr. (2002) 24 ptc; @ Para 13, 16 (SC) also 2002 (3) SCC 65. b) Ciba-Geigy Limited and Anr. Vs Surinder Singh and Ors. 1998 PTC (18) 545 (Del) at Page 549c) Colgate Palmolive Company vs Anchor Health and Beauty care (2003) 27 PTC 478 (Del.) Para 59.

(G) that the plaintiff s products used from at least since 1987 have acquired a descriptive and secondary meaning and status.

(H) that the plaintiff has been using the aforesaid product names since 1985 and 1987 respectively and the defendants used them since April, 2003 only and the said products, i. e. , sub brands `hot and Sweet , `chilli garlic and `masala Chilli are similar descriptive words and have become distinctive of the plaintiff. In any event these words have acquired a secondary meaning in favour of the plaintiff due to the plaintiff s long user of such products. Reliance is placed on the following judgments:- a) Kaviraj Pandit Durga Dutt Sharma Vs Navratna pharmaceutical Laboratories PTC (Supp.) (2) 680 (SC) @ paras 4,15 also AIR 1965 SC 980. b) Godfrey Philips India Ltd. Vs Girnar Food and beverages Pvt. Ltd. (2004) 5 SCC 257, @ P. 4c) Indian Shaving Products Ltd. and Anr. Vs Gift Pack and anr. 1998 (18) 698 (Del) @ P. 23

( 2 ) THAT the substantial part of the buyers in the market place can be misled since the class of prospective customers could be house-wives, domestic servants, cooks, children etc. , who are likely to be deceived by the use of the product name itself. The tests of a customer of average intelligence has been suggested and the following judgments are