The defendants' offer to make changes while retaining the key elements of the trade dress was an attempt to sail near the wind, and the trading by the defendants was neither honest nor fair.

MANMOHAN, J.

I.A. No.14758/2016

1. The case at hand illustrates what is well known amongst the intellectual-property rights fraternity, "The most successful form of copying is to employ enough points of similarity to confuse the public with enough points of difference to confuse the courts. Few would be stupid enough to make exact copies of another’s mark or symbol.”[(See: Baker V. Master Printers Union of New Jersey, 47 USPQ 69 at 72 (D.N.J.1940)]

2. It is pertinent to mention that the present suit has been filed for permanent injunction restraining infringement of trade mark, rendition of accounts, etc. With consent of the parties, I.A. No.14758/2016 was taken up for hearing and disposal. The prayer clause in the application is reproduced herein below:-

"A. An ex parte and ad interim and interim injunction against the Defendants, their partners, principals, directors, officers, employees, agents, distributors, suppliers, affiliates, subsidiaries, franchisees, licensees, representatives, group companies and assigns restraining them from:

i. Manufacturing, or authorizing the manufacture distributing, exporting, selling, offering for sale, advertising, promoting, displaying and/or using, in any manner whatsoever, the impugned products namely EVEREST COCONUT OIL and/or EVEREST JASMINE HAIR OIL as represented in the foregoing paragraph Nos. 3 & 38, of the plaint and/or any other product bearing any other mark/label/trade dress/packaging deceptively and/or confusingly similar to the Plaintiff’s registered trade marks/labels namely PARACHUTE (labels), FLAG DEVICE and/or PARACHUTE ADVANSED JASMINE (label) as tabulated under paragraph Nos 11, 14 and 25 of the plaint as a trade mark/label or part of a trade mark/label, trade name or a part of trade name, domain name or a part of domain name or in any other manner whatsoever, which would amount to infringement of the registered trade marks/labels of the Plaintiffs.

ii. Manufacturing, or authorizing the manufacture distributing, exporting, selling, offering for sale, advertising, promoting, displaying and/or using, in any manner whatsoever, the impugned products namely EVEREST COCONUT OIL and/or EVEREST JASMINE HAIR OIL and/or any other product bearing any other mark/label/trade dress/ packaging/bottle shapes/shape of jars deceptively and/or confusingly similar to the Plaintiff’s trade dress/labels/packaging/bottle shapes for the brands PARACHUTE (labels), FLAG DEVICE, BROKEN COCUNUT DEVICE, PARACHUTE BOTTLE, PARACHUTE JAR and/or PARACHUTE ADVANSED JASMINE (labels) as tabulated under paragraph Nos. 11, 12, 14, 18, 20, 25 and 26 of the plaint and/or variants and the unique/distinctive trade dress/bottle shapes/shape of jars relating thereto, thereby passing off their products as that of the Plaintiff.

iii. Reproducing, printing, publishing and/or using the labels/packaging as mentioned in paragraph Nos. 3 and 38 of the plaint and/or from imitating in material form the Plaintiffs labels/packaging, as represented in Paragraph Nos. 17, 18 and 26 of the plaint, the copyrights of which vest with the Plaintiff, thereby amounting to the infringement of the Plaintiff’s copyrights in the said works.

B. The Defendants including principals, proprietor, partners, officers, employees, agents, distributors, suppliers, affiliates, subsidiaries, franchisees, licensees, representatives, group companies and assigns be ordered by an ad interim mandatory injunction directing that they at their own expense:

i. Recall all the impugned products and/or any marketing, promotional and advertising materials that bear or incorporate the impugned mark/labels/packaging/trade dress/bottle shape, or any other mark/labels/packaging/trade dress/bottle shape deceptively and confusingly similar to the Plaintiff's mark/labels/packaging/trade dress/bottle shape, which has been manufactured and/or sold, distributed in th