In passing off actions, trade dress is assessed based on the overall visual impression rather than isolated features. A house mark does not automatically eliminate deceptive similarity if the aggregate get-up misleads an average consumer of imperfect recollection into associating the two products.

JUDGMENT :

V. KAMESWAR RAO, J.

1. This appeal has been filed by the petitioner with the following prayers:

“a. Allow the present appeal and set aside the Impugned Judgment dated 31.01.2026 in I.A. No. 14557 of 2023 passed by the Ld. Single Judge in the Civil Commercial Suit bearing 532 of 2023 titled as Emami Limited vs Dabur India Limited;

b. Grant a Stay against the operation of the Impugned Judgment dated 31.01.2026 in I.A. No. 14557 of 2023 passed by the Ld. Single Judge in the Civil Commercial Suit bearing 532 of 2023 titled as Emami Limited vs Dabur India Limited, during the pendency of the present Appeal;”

2. This appeal impugns the judgment dated 31.01.2026 in I.A. No.14557/2023 whereby the learned Single Judge had allowed the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) in favour of the respondent / plaintiff.

3. The impugned judgment notes that vide order dated 09.08.2023, the appellant/defendant was restrained from selling its product “COOL KING THANDA TAEL” in any manner in the Trade Dress or any similar Trade Dress to the product of the respondent / plaintiff being Navratna Oil as below:-

4. For the purpose of clarity, we are reproducing enlarged labels (procured from web) of the impugned products to highlight the features of the trade dress:-

5. The appellant/defendant preferred an appeal against the order dated 09.08.2023 and a Coordinate Bench of this Court vide order dated 21.08.2023 passed in FAO(OS)(COMM.) 171/2023 set aside the initial order dated 09.10.2023 on the limited ground that in the circumstances of the present case, the defendant should have been given an opportunity to file the reply to the said application before adjudication on the aspect of interim stay. It is a conceded case as can be seen from the impugned order that the respondent/plaintiff in terms of order dated 29.02.2024 had limited its submissions on the aspect of passing off at the stage of seeking interim relief.

FACTUAL BACKGROUND

6. The facts as noted from the record are that the respondent/plaintiff established their business in the year 1974 under the flagship company of the Emami Group of Companies and is engaged in manufacturing and marketing of health, beauty, personal care and other allied products and claims to be one of the leading and fastest growing personal healthcare brands in India. The respondent/plaintiff commenced manufacturing of ayurvedic medicines and other allied medicinal preparations in India in the year 1982 and has acquired tremendous goodwill both within and outside the country. According to respondent/plaintiff, their product Navratna Oil was launched in January, 1989 with the catch phrase “Thanda Thanda Cool Cool” and the respondent/plaintiff claims to be in continuous and uninterrupted use of the phrase as well as the product ever since. It is their case that they are the undisputed leader in the therapeutic cooling oil segment providing multi-purpose benefits to satisfy their ever growing consumer base. It is averred that their market share comprises of 66% as of 2022 i.e., in the cooling oil segment. They have obtained registrations for the following marks with the registration details as provided below:-