The judgment established the importance of aesthetic and novel design in design law and emphasized the criteria for granting an injunction in passing off cases.

1. The Plaintiffs and the Defendant. The 2nd Defendant, ebay India Pvt. Ltd, was directed to be deleted by a separate order are fighting over crayons.

2. According to the Plaintiffs, Faber-Castell AKG and A. W. Faber-Castell (I) Pvt Ltd (together, “Faber-Castell”; separately “Faber-Castell AKG” and “Faber-Castell India”, respectively), The 2nd Plaintiff is the wholly-owned Indian subsidiary of the 1st Plaintiff they have since 2010 marketed in India through the 2nd Plaintiff a set of 24 crayons in quite luscious colours, of a distinctive type and in unique packaging. Faber-Castell says that the Defendant, Cello Pens Pvt Ltd (“Cello”), has not merely copied every single aspect of the Faber-Castell product “down to the last millimetre”, as Mr. Dhond who appears for them puts it, but have infringed Faber- Castell’s design. The cause of action in the suit is in design and copyright infringement combined with a cause of action in passing off.

3. The Notice of Motion was first moved quite recently, on 9th July 2015. Since then a very large number of Affidavits have come to be filed. The paper-book in the Notice of Motion alone is now over 647 pages and has gone to the stage of a Sur-Sur-Sur- Rejoinder. Despite this volume and bulk, the issue is narrow, especially because Mr. Dhond limits his application at the final hearing of this Notice of Motion to his cause of action in passing off. The rest, as he quite correctly says, can await the trial.

4. Mr. Dhond places his case thus: First, the Plaintiffs’ product has a unique and novel shape. By this he means the triangular or three-sided shape of the 24 crayons in the package, as also the presence on all three faces of the crayon’s shank of two parallel lines of tiny protuberances or raised dots. Whether these are purely functional to provide a better grip as Mr. Kane for Cello claims, or whether these dots are what is described in this branch of the law as ‘capricious’ is a matter to which I will turn shortly. The second aspect to Mr. Dhond’s argument is the manner in which the crayons are presented in a tray, i.e., in two subsidiary recessed trays facing each other and set in a larger outer container. Given that the crayons all also have sharpened points — and the fact that they are sharpenable and erasable is also said to be distinctive — when placed like thus, these crayons look nothing so much as vibrantly coloured missiles in antipodal silos: one battery of these crayonmissles faces the other across the demilitarized zone of shallower recesses (ditches, in our martial analogy) that hold, predictably, a benign eraser and a useful sharpener. The larger container tray, in stealthy black plastic, slides out of a colourful carton, one that is predominantly red. The carton itself has two fenestellae through which the inner contents are partially visible. There are, in addition, certain elements to the packaging itself, i.e., its predominantly red colour scheme, the scattering of logos and icons on the package, and so on. My military parallels notwithstanding, this is a bright and cheerful package such as would certainly entice and excite a young child: the packaging is vivid and eye-catching, and the crayons are — there is no other word for this — gorgeous. They have a sheen to them that other rival products lack. At a single glance, they evoke even in the adult mind memories of a simpler, kinder, less complicated time.

5. The outer packaging is, however, by now of little consequence since Mr. Kane states that Cello’s outer packaging has been withdrawn from the market and an entirely new and dissimilar packaging has been, or is about to be, introduced. The annexure to this order, provided by Mr. Dhond, has representations of the competing products in a tabulated comparison.

6. Faber-Castell AKG is a very old company. It was established in 1761. It is widely renowned for its range of quality writing products and instruments: pencils, both normal and mechanical or automatic, coloure