The judgment establishes the principles of infringement of registered design, passing off, and the protection of trade dress under the Designs Act and the Trade Marks Act.

1. OA No. 267 of 2011 is filed for ad-interim injunction restraining the respondent herein, its directors/partners (as applicable), all its principal officers, staff, men, agents, servants, successors assigns in business, representatives or any other person claiming any right through or under the defendant from in any manner using, manufacturing packing, marketing, distributing or selling or offering for sale, advertising, displaying or indirectly using a trade dress of shape, size, method of sealing and finishing, on any of the defendants products in particular the packages of dates, which is identical/deceptively similar to the trade dress of the plaintiff in the shape, size, method of sealing and finishing, of the plaintiffs packages of dates as depicted.

2. OA No. 268 of 2011 is filed to grant an order of ad-interim injunction restraining the respondent herein, its partners/directors (as applicable), all its principal officers, staff, men, agents, servants, successors, assigns in business, representatives or any other person claiming any right through or under the defendant from in any manner using, manufacturing, packing, marketing, distributing or selling or offering for sale, advertising, displaying or indirectly using any identical or deceptively similar colour combination on the packaging of any of the defendants products in particularly dates, amounting to infringement/piracy of the registered design of the plaintiff under registered design No.222936 in Class : 07-02.

3. The plaintiff and the defendant have been dealing in the process of packing and marketing identical goods, Dates, Dates Syrup, Honey, Jam, Oats, Tamarind, Vermicelli, Salt, Olive oil and other food products under the Trade Mark Lion along with the device of Lion and Annai along with the device of Mother and Child respectively.

4. According to the plaintiff, he obtained the registration of the design for the colour scheme of its packaging in pouches for dates in design application number 222936 in class 07-02 and the registration certificate is issued on 11-1-2001. It is the further case of the plaintiff that the plaintiffs dates are sold in pouches called pouch packages, which is a distinct trade dress in the shape and size as well as method of sealing and finishing of the pouch package. The new pouch package has been adopted and being used by the plaintiff from 21-5-2009 and attained familiarity and popularity, resulting in increase in sales turn over and business goodwill and reputation of the plaintiff. Whereas, the defendant also launched identical products dates and the same are sold with identical trade dress, pouch packages in the same colour scheme, shape, size, method of sealing and finishing and such adoption is, with dishonest intention to make gain on the reputation and goodwill of the plaintiffs distinct design of the trade dress and there is every likelihood of confusion to the unwary customers consisting of uneducated, illiterates, villagers and inadequately educated.

5. According to the plaintiff, such act of the defendant amounts to infringement of the plaintiffs registered design and colour scheme and the act of the defendant in passing off its identical products as that of the plaintiff amounts to misrepresentation, leading to confusion and deception about the origin of the products or about the trade connection between the two companies.

6. The reliefs are seriously opposed by the defendant on the following grounds (i) the trademarks of the plaintiff and the defendant LION and ANNAI are neither phonetically nor visually similar (ii) the registration of preprinted aluminium foil pouch under the head packing under class 07-02 is wrongly obtained under wrong class and (iii) the novelty, in respect of which registration of design is obtained is only with respect to sealing lines of the wrapper and not for the colour scheme. Even otherwise, the plaintiff has been admittedly selling dates in aluminium foil pouches in the same trade dre