The court affirmed that copyright infringement requires substantial similarity in product packaging which may mislead consumers, justifying injunctive relief to protect trademark integrity.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done through hybrid mode.

2. The present suit has been filed by the Plaintiffs seeking permanent injunction restraining the infringement of copyright, passing off, unfair competition, delivery up, rendition of accounts, damages, and other reliefs. The dispute in the present suit relates to the mark `KESRI MARHAM' used by the Plaintiffs in respect of their flagship product which is an ointment for the treatment of body aches. The case of the Plaintiffs was that the Defendant is the manufacturer and marketer of `PAHARI GARHWALI BALM' which is also a pain relief balm and is being packaged and sold in a nearly identical trade dress as that used by the Plaintiffs for its `KESRI MARHAM' product.

3. The competing product labels of the Plaintiffs and the Defendant, as impugned in the present suit, are set out hereinbelow:

4. Upon a consideration of the above competing labels, this Court had granted an ex parte ad-interim injunction, vide order dated 17th May, 2021, in the following terms:

"14. Prima facie, a bare glance of the label of the defendant, vis-a-vis that of the plaintiffs, indicates that there has been a conscious effort to copy the plaintiffs' labels, to the extent that the colours used by the defendant, the placing of various features on the label and the photographs representing the ailments which the balm is expected to alleviate, are also identically placed. There is, therefore, prima facie every possibility of an unwary purchaser or customer mistaking the product of the defendant as coming from the stable of the plaintiffs.

15. Prima facie, therefore, it appears that the defendant is passing off its products as those of the plaintiffs.

16. In view thereof, I am of the opinion that the plaintiffs have made out a good prima facie case for grant of ex-parte ad interim relief. In case such relief is not granted and the market is permitted to be flooded with the defendant's product, prejudice to the plaintiffs would be irreparable. The balance of convenience would also, therefore, justify grant of ad interim ex-parte relief as prayed.

17. In view therefore, till the next date of hearing, there shall be an ex-parte ad interim order in terms of prayers (a) to (c) of IA 6311/2021."

5. Post the above injunction order dated 17th May, 2021, the Defendant has entered appearance. However, the Defendant has failed to file the written statement. Accordingly, vide order dated 13th July, 2022 passed by the ld. Joint Registrar, the Defendant's right to file the written statement has been closed.

6. As recorded in the previous order dated 30th August, 2022, during the pendency of the present suit, the Defendant made certain minor modifications in the colour scheme and packaging of the impugned product. The said packaging was shown to this Court on the said date. However, the same were not satisfactory, and vide order dated 30th August, 2022, it was directed as under:

"5. During the pendency of the present suit, the Defendant claims to have made some minor modifications in the colour scheme and packaging of the impugned product. The said packaging have been shown to the Court. Having perused the same, the Court is of the opinion that the change effected in the packaging of the Defendant's product is minimal in nature. Thus, the new packaging of the Defendant's product would, prima facie, amount to contempt of the orders passed by the Court in the present suit.

6. Interim order already granted shall stand confirmed during the pendency of the present suit. I.A. 6311/2021 is disposed of."

7. On the said date, I.A. 6313/2021 wherein the Plaintiff was seeking disclosure of the accounts and