JUDGMENT :

SANJIB BANERJEE, J.

Prayer: Appeals filed under Order XXXVI Rule 1 of Original Side Rules read with Clause 15 of Letters Patent against the Common Order dated 01.04.2021 in O.A. Nos. 30 and 31 of 2021 on the file of original side of this court.

1. The order impugned herein by the defendant has been passed in the confusing presentation of the plaintiff’s case where the claim in a trade mark infringement and passing-off action was founded on the colour scheme of two primary colours, despite the names, get-up and packaging material of the products being completely distinct and some promotion material published on facebook by the defendant appellant that were not relatable to the plaintiff’s product.

2. The most startling feature is that despite the injunction sought on the ground of infringement being declined “though the plaintiff says that it did not much press the same” an injunction on the colour scheme in the packaging material and the facebook pages has been issued.

3. Three applications were taken out by the plaintiff, I.A. No. 29 of 2021 seeking an injunction on the ground of infringement; I.A. No. 30 of 2021 seeking an injunction on the perceived copyright in the colour scheme and I.A. No. 31 of 2021 seeking an injunction against passing-off. I.A. No. 29 of 2021 failed, but an injunction was issued restraining the colour combination used by the defendant of gold and yellow or even of copper and gold, if the appellant is to be amused. What appears to have been missed is the fundamental ethos of a trade mark action and what it ought to protect. Essentially, the tort is of deceit where the complaint is that the defendant seeks to deceive an unwary purchaser into believing that the defendant’s product was from the plaintiff’s stable. The underlying assertion is of the defendant filching the trade of the plaintiff by riding piggyback on the reputation of the plaintiff and the plaintiff’s products or its popularity.

4. The essential test is to assess whether an ordinary person would pick up the defendant’s product thinking it to be the plaintiff’s. As to whether a colour scheme ought to be protected or a particular get-up is to be conferred exclusivity or a mark has to be seen to be deceptive depends all on the ultimate assessment as to whether one would mistake the defendant’s product for the plaintiff’s. This fundamental feature of assessment appears to be missing in the judgment and order impugned as the trial court has gone on the basis of the plaintiff being exclusively entitled to use the colour combination of gold and yellow where the darker colour fades into the lighter or the lighter colour brightens into the darker, depending on the perspective or the point of view.

5. In addition, the defendant, as a part of promoting agarbathi (incense sticks) sold under the name and style of Mangaldeep, had put up pictures of Hindu Gods on its facebook page with the background predominantly of gold and yellow and agarbathis placed on the ground as would be during any pooja. Again, nothing from such facebook page would relate to the plaintiff’s product for the plaintiff to even raise the remotest whimper on such ground. The impugned facebook pages had nothing to do with the defendant’s product. Secondly, nothing in such facebook pages could be said to mislead any person believing that it had any association with the plaintiff’s product since the overwhelming feature of the facebook pages was the depiction of the Hindu idol notwithstanding the verisimilitude of the colour combination over which no exclusivity can, ordinarily, be sought.

6. There is no dispute that the plaintiff’s product may be the market-leader in the field of agarbathi sold under the name of Cycle Brand. There may even be no dispute that the defendant’s fledgling Mangaldeep brand may not have much of a market share. But upon a look at the defendant’s packaging material, notwithstanding the colour combination thereof, there is scarcely any resemblance to the pla