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2016 Supreme(Del) 3344
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN SINGH, J.
SEVEN TOWNS LTD & ANR - Plaintiffs
versus
M/S KIDDILAND & ANR - Defendants
I.A. No.13750 of 2010 in CS(OS) No.2101 of 2010
Decided On : 06-09-2016
For the Appellant : Mr. Pritesh Kapur, Adv. with Ms. Sujata Chaudhri & Mr. Ryan Wilson, Advs.
For the Respondent: Mr. Raj Kumar Mehta, Adv. with Ms.Himanshi Andley, Adv. Ms. Meenakshi Arora, Sr. Adv. with Mr.Vasav Anantharaman, Adv.
Headnote:
Copyright Act, 1957 - Section 14, 15(2), 51 - Trade Marks Act, 1999 - Section 2(1)(zg), 11(6) - Permanent injunction - Infringement of copyright - Passing off - Using the label, which is similar to or identical with the plaintiff's label or packaging or offering or displaying for sale the cubes being marketed by the defendants - Infringing product are identical - Label on the packaging is deceptively similar, including in terms of the colors used and the font - Defendants are using a deceptively similar trade dress - Blatant copying - confusion is certain - Defendants conduct constitutes the tortuous act of passing off - On the date of adoption defendant must be aware about the game of the plaintiffs - Defendants have created the trade dress by placing the trace of the plaintiffs - It was not possible for anyone to have the similar trade dress/colour combination and layout - Held, plaintiffs are entitled for infringement in relation to the trade dress - Whether the changes suggested about the trade dress should be used in the market - It is proper that the Court should not express any opinion - It is the duty of the Court to decide the dispute in hand which is to be decided - Interim application is being decided on the basis of material and facts before the Court - Injunction issued against the defendants.
MANMOHAN SINGH, J.
1. The plaintiffs have filed the present suit for permanent injunction, restraining infringement of copyright, passing off, dilution, and various other reliefs against the defendants. Along with the said suit, the plaintiffs have filed the above said application for seeking various interim reliefs against the two defendants namely M/s. Kiddiland and M/s. Cybershop Marketing Pvt. Ltd. The suit along with the said application was listed for the first time before this Court on 8th October, 2010. On 28th October, 2010 this Court passed an ex-parte ad interim order restraining the defendants from using the label, which is similar to or identical with the plaintiff’s label or packaging or offering or displaying for sale the cubes being marketed by the defendants.
2. The defendant No.2 thereafter, had filed FAO (OS) No.692/2010 before the Division Bench of this Court, challenging the order dated 28th October, 2010. The Division Bench by an order dated 8th December, 2010 had clarified the order passed by this Court on 28th October, 2010. The order dated 8th December, 2010 passed by the Division Bench has been reproduced here as under :-
The appellant is aggrieved by the impugned order dated 28.10.2010 passed by the learned Single Judge on IA No.13750/2010 filed by the respondents/plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908. Learned counsel for the appellant, at the inception itself, fairly states that it would be appropriate that the appellant file their written statement and reply to the stay application so that the interim application can be heard on the date already fixed before the learned Single Judge of 14.01.2011. Similarly, learned counsel for the respondents/plaintiffs states that they would be pressing for a larger injunction when the application is taken up for hearing. Learned counsel for the appellant, however, states that there appears to be some confusion arising from the wording of the injunction granted in terms of order dated 28.10.2010 inasmuch as it restrains the appellant from using the label which is similarly to or identical with the respondents’ label or packaging or offering or displaying for sale the cubes in such labels and packaging but the order also seems to suggest, in view of the letter annexed as Annexure A (Colly) starting from page 225, that there is a ban on sale of cubes. Learned counsel for the respondents fairly states that interim injunction already granted on 28.10.2010 is not for sale of cubes though he would press for injunction in that respect on the next date of hearing.
We thus clarify that the injunction order dated 28.10.2010 as it stands today is only in respect of label or packaging and all other aspects will be urged by the respective parties before the learned Single Judge.
The appeal is accordingly disposed of.
Dasti to learned counsel for the parties.”
3. The plaintiffs thereafter amended its plaint and inter alia claimed as under:
"10. Rubik’s Cube has a distinctive trade dress which comprises a black border/cage consisting of lines of a particular width along with each of the six faces of the cube covered with nine square stickers with rounded edges, the stickers consist of particular shades of six solid colors namely red, blue, orange, green, white and yellow. Also, the specific size and shape of the Rubik's Cube forms an integral part of the distinctive trade dress. Moreover, the overall impression of the Rubik's Cube including its look and feel is an artistic work within the meaning of Section 2(c) of the Copyright Act, 1957 and the Plaintiffs work is entitled to protection in India also by virtue of the International Copyright Order, 1999..”
10A. The packaging and label inside which Rubik's Cube is sold in India is an integral part of the trade dress of Rubik's Cube. Additionally, as the packaging and label are highly artistic
