Dabur v s baidyanath

Hence, it is submitted that the Plaintiff neither owns the copyright in and to the alleged work in question, nor has the locus standi to file the present suit claiming infringement of copyright. The said conduct of the defendant cannot be called as a bonafide as the defendant is in the same trade and the defendant must be aware about the packaging of the plaintiff at the time of its adoption.

The relevant extract of the same reads as under: Even in the New Trade Mark Act the definition of the mark is given in Section 2 m which says that "Mark" include a device, brand, style, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.

As regard the objections of the defendant are concerned, the same shall have to be considered at the time of trial.

Packagings used by the plaintiff in the year and since August, are scanned and reproduced hereunder: There is a wide protection against imitation or deceptive similarities of trade dress as trade dress is the soul for identification of the goods as to its source and origin and as such is liable to cause confusion in the minds of unwary customers particularly those who have been using the product over a long period.

Dabur India Limited, therefore, is the owner of copyright in the said work. It appears to the Court that in case, both packaging used by the parties are compared in meaningful manner, it can easily come to the conclusion that one is designed by placing the another.

The defendants are not entitled to represent their goods as being the goods of the plaintiffs. Subhashish Dutta, who is not the owner of copyright therein. In fact, if both the products are displayed on a shelf side by side, it is impossible to make out the difference between the two as is evident from their photographic depiction given hereinbelow: Section 55 gives the rights to the owner to take the civil remedies for infringement by way of injunction, damages, accounts etc.

There may be exception also. The answer is no doubt one of degree and will depend on the evidence.

Again, the White circle with grey lettering is identically super-imposed on violet background. The following are the essential characteristics of an action of passing off: It is evident from the sale figures thereof and promotional expenses reproduced in para 15 and 16 of the plaint.

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If it has been added so as to donote the origin of the goods, and the evidence shows that in practice it does so, it can properly be said that it is being used as a mark in the trade mark sense. Infringement copy means, in relation to original artistic work, a reproduction thereof in any material form, inter-alia, to communicate the work to the public but the same was not copied already in circulation, i.

By this order, I propose to decide the pending interim application being IA No. It is true that under the Copyright Act, the assignment must be in writing. In case, prima facie, proves a tangible threat by the defendant to trade in the same manner even incorrectly that would be likely to give rise to deception or confusion.

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The main thrust of the learned counsel for the defendant is that the plaintiff is not the owner of the copyright. Copyright is a incorporeal right. Anand v Delux Films, PTC Suppl 1 SCAIR SC that, "where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.

In this regard, Section 19 1 is very categorical, inasmuch as it states that, "No assignment of copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent.

As per defendant a two-month use is not enough to confer or establish factual distinctiveness in respect of the label of the Plaintiff, even otherwise, there is no likelihood of confusion.

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Dabur v s baidyanath
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