The distinctiveness of the shape of the product associated with the plaintiffs and the essential components of goodwill and reputation of a commercial enterprise are essential for seeking protection in the nature of interim injunction.

14023/2016 (u/O VI R-17 CPC of the plaintiffs for amendment of the plaint)

1. The plaintiffs have sued for permanent injunction restraining the defendants from (i) committing acts of piracy; (ii) manufacturing, selling or offering for sale infringing products listed in the Table II of the plaint having shape and configuration identical to or resembling the plaintiffs’ registered deigns applied to the Tupperware Products and being infringing copies of the Tupperware Products thereby infringing the plaintiffs’ copyright in the registered designs listed in Table I of the plaint as well as infringing the copyright in the artistic work owned by the plaintiffs listed in Table IV and for ancillary reliefs. The suit, as per the title thereof is “under Section 22 of the Designs Act, 2000 r/w Section 55 of the Copyright Act, 1957”.

2. However the plaintiffs, in para 10 of the plaint, while giving the cause of action for the suit, divided the paragraphs under the heads “A. Design Infringement”, “B. Copyright Infringement”, “C. Passing off of Trade Dress, Trade Names Etc., and “D. Unfair Competition and Unfair Trade Practices” and under the head “C. Passing off of Trade Dress and Trade Names Etc.”, inter alia pleaded:-

“(i). It is submitted that by virtue of the new and original designs of the Tupperware Products, the same have become extremely popular in the Indian market as well as in other countries worldwide and have acquired tremendous goodwill and reputation. The Plaintiff No. 1 has spent enormous amount of time, effort and money amounting to USD 120 million from 1994 through the end of 2004 on research and development. The wide recognition given to the designs created by Plaintiff No. 1 is detailed in paragraph 3 hereinabove. Amongst the honours won recently by Plaintiffs, it is pertinent to point out that the Guinness Book has listed Tupperware Products among the 10 greatest inventions of the 20th century. The Tupperware Products have won numerous design awards all over the world. Plaintiff No. 1 was one of the seven US companies to recently receive the ‘2004 Good Buy Award’ from the reputed Good Housekeeping Institute. Plaintiff No.1 has also received an award for one of the 25 Best Products of 2004 from the reputed Fortune Magazine. In a brand survey by HFN the Tupperware ® trademark are ranked second out of 150 companies that sell home products in terms of name recognition A list of Awards won by the Plaintiff No. 1 over the years is annexed hereto and marked as Annexure P3 hereinabove. The goodwill and reputation of Tupperware Products is also widely reported in newspapers and magazines as is evident from newspaper clippings annexed herewith and marked as Annexure P4 hereinabove. The diverse range of Tupperware Products is known worldwide for its unique designs, world-class quality, technical and functional superiority over similar kind of products produced by many other plastic product manufacturers. The trademark “Tupperware” has become a well known consumer goods brand in India and globally and this brand name is associated with unique designs, world-class quality, technical and functional superiority design, and high quality.

(ii). The actual sales and the growth thereof of the Tupperware Products in India as reflected in paragraph 4 hereinabove and its sales in other countries tells a story of success of the Tupperware Products manufactured and sold by Plaintiff No. 2 in India and the increasing liking of the public at large for the Tupperware Products. The Plaintiff No. 2 has also spent crores of rupees on advertisement and publicity as reflected in the table given in paragraph 5 hereinabove. The Tupperware Products have captured a major part of the Indian market of sale of food grade plastic containers since its presence in India in 1996. The public at large patronizes the Tupperware Products not only in India but also worldwide. The sales in India have increased substantially as reported in the Annual Report of 2003