A registered device mark must be considered as a whole; similarity in functional shape (dispenser) alone does not prove infringement if overall appearance differs. Furthermore, trademark law cannot be used to indirectly revive expired proprietary design rights under the Designs Act, 2000.

1. The Court: Affidavit-of-service filed in Court is taken on record.

2. The instant appeal is directed against an ad interim order dated February 25, 2026, passed by a Single Bench of this Court.

3. By the impugned order, the appellant, defendant in the suit, has been restrained from using its product. The product, common to both the appellant-defendant and the respondent-plaintiff, is a toilet cleaning liquid.

4. The bone of contention between the parties is with regard to the shape of the bottle which contains the cleaning liquid sold by either of them.

5. Mr. Sudipto Sarkar, learned senior counsel appearing for the plaintiff-respondent, submits that his client has obtained three several registrations of the trade mark of the ‘DEVICE’ called “HARPIC BOTTLE AND CAP”. The plaintiff is in the market with its product HARPIC TOILET CLEANER for a substantial period of time.

6. It is an admitted position that the plaintiff-respondent enjoyed a registered design under the Designs Act, 2000, the registration of which has since expired by efflux of time in terms of the provisions of the Act.

7. The proprietorship of the spouted, duck head like head and shape of the bottle has ended. It is now generic. The bottle of the plaintiff is blue in colour with a spouted cap closed, dispenser. The name of the product is displayed in bold English alphabets. The defendant entered into the market with its toilet cleaner named ‘spic’ sometime in October 2025.

8. The colour of the appellant/defendant’s bottle is black and its label is completely different from the appellant’s product. The design of the bottle is different. There is only similarity in shape of the dispenser. The caps of the bottles of the plaintiff and defendant are different. The dispenser is similar as its aim is to reach under the rim of a toilet commode. The plaintiff-respondent was and is aware of the launch and use of the defendant’s product, as is evident from the pleadings made in the plaint.

9. The respondent’s suit was filed sometime in February, 2026 primarily assailing disparaging advertisements by the appellants comparing and showing down the product of the plaintiff. The allegedly disparaging advertisements were being published since October, 2025. Pleading extreme urgency before the single bench, an application under Order 39 Rule 1 & 2 was filed and sought to be moved ex parte. On intervention by the learned advocates of the appellants, service of the applications comprising in four volumes was ordered and the matter was fixed for hearing in an hour’s time. The matter was heard and fixed for orders the next day, when it was heard further and the impugned order was passed.

10. Paragraphs 1 to 60 of the plaint allege that the appellant has issued advertisements in the market which disparage the product of the plaintiff-

respondent. Infringement of the trade mark is an ancillary prayer.

11. The respondent-plaintiff argued that it was entitled to move ever ex-parte for injunction on the principle that once an infringement of a trade mark is alleged, injunction should follow as a matter of course.

12. Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant, would vehemently argue that the alleged disparaging advertisements were being published since October, 2025, the plaintiff/ respondent mislead the single bench pleading urgency to seek injunction at the ad-interim stage. The