JUDGMENT :

VIBHU BAKHRU, J

1. The appellant has filed the present intra court appeal impugning a judgment dated 26.03.2019 (hereafter ‘the impugned judgment’) passed by the learned Single Judge, whereby the appellant’s suit, CS(COMM) 10/2019 captioned Surya Food and Agro Limited v. Om Traders & Anr., was dismissed.

2. The appellant had filed the above-captioned suit alleging infringement of copyright, passing off, rendition of accounts and damages. The petitioner, inter alia, sought a decree of permanent injunction against the respondent (defendant) from selling, offering for sale any goods, advertising or promoting any product under the packaging, get-up and/or trade dress of the defendant’s product ‘BUTTER KRUNCH’ or any other packaging, get-up and/or trade dress that is deceptively similar to the appellant’s product ‘BUTTER DELITE’.

3. The learned Single Judge declined the appellant’s (plaintiff’s) prayer for interim relief and at the next effective hearing, dismissed the suit as the Court found that the plaintiff was not entitled to any relief.

Factual Context

4. The appellant, a company incorporated in the year 1992, is engaged in the manufacturing and sale of cookies, cakes, confectionaries juices and beverages. The appellant is the owner of several trademarks such as “Butter Bite”, “Italiano”, “Classic Crème”, “Bourbon Crème”, “CNC”, “Snacks Zig Zag”, “Puff Crème”, “Cheese Cracker”, “Cheez Bit”, “Snakker”, “Marie Lite Biscuits”, “Oats Bite”, “Butter Milk”, “Crackle Coconut”, “Choco Chekkers”, “Jeera Top”, Cashew, “Magic Cake”, “Choco Gold”, “Hungger”, “Kickker”, “coffito”, “Toffito”, “Treat” and “Fresh Gold”.

5. Respondent no.1, Om Traders, is a retailer selling products of respondent no.3 (Raja Udyog Private Limited).

6. The appellant had filed a suit in respect of its product sold under the trademark “BUTTER DELITE”. The appellant claimed that its product is highly successful, reputed, and well-known in the market. It claimed that it commenced sale of the said product in a distinctive packaging, in the month of October 2015. And, by long and continuous use of the distinctive packaging for more than three years, the packaging, trade dress and get-up had become distinctive of its product ‘BUTTER DELITE’. It claimed that by virtue of prior use coupled with extensive publicity and promotion, it had the exclusive common law and proprietary right in the packaging, get-up and trade dress of the product sold under the mark “BUTTER DELITE”. The appellant disclosed the annual sales figure of its product ‘BUTTER DELITE’ as under:

7. The appellant claimed that the packaging of its product ‘BUTTER DELITE’ is also an artistic work under the Copyright Act, 1957 (hereafter ‘the Copyright Act’). It claimed that the said work was created by one Mr. Sachin More, Designer at Oberoi IBC India Pvt. Ltd. in the month of August 2015, under the instructions of the appellant. He had, thereafter, assigned the copyright and all rights in the art work in the said packaging to the appellant (plaintiff) in terms of a deed of assignment dated 10.08.2015. The appellant states that during the pendency of the present appeal, the said packaging was registered under the Copyright Act bearing Copyright Registration No.A-132116 of 2019. It further claims that the packaging, trade dress and get-up has also been registered as a trademark bearing Registration No. 4329956 in Class 30.

8. The appellant (plaintiff) claims that during the second week of the month of December 2018, its representative came across the respondents’ product sold under the trademark “BUTTER KRUNCH”. It claims that the packaging of the said product is substantially similar to the packaging of the appellant’s product ‘BUTT