The Delhi High Court, dealing with an intellectual property dispute, noted emphatically, Package color, The striking similarity of fonts and styles constitutes trademark infringement. Judge Suris．Kumar．Kate (Suresh Kumar Kait) An appeal to set aside a unilateral provisional injunction granted to the plaintiff is being processed.

Brief introduction of the case

The case involves two cigarette brands, Plaintiff against defendant (appellant) Trademark of "TOPAZ" The plaintiff's trademark was used "TOTAL" (They also have the same font and style) . Plaintiff claims, The defendant's trademark is similar to that of the plaintiff, deceiving, Constitute a trademark against the plaintiff "TOTAL" Infringement of.

The plaintiff further states that, The packaging of the defendant's products／The essential characteristics of the commercial appearance bear on the plaintiff "TOTAL" The packaging of trademarked products／Commercial appearance constitutes copyright infringement. The Delhi High Court had ordered it, Prohibition of defendant, Its director, Partner or owner (It depends) , Its officers, Employee and agent manufacturing, sales, Offer for sale, supply, propaganda, Trade directly or indirectly in any unauthorized use of Plaintiff's trademark "TOTAL" Products of. Case argument defendant (appellant) Argued the senior counsel, They are in 2011 The year adopted the trademark "TOPAZ" , And the plaintiff 2015 The trademark was adopted in 2000 "TOTAL" .

The lawyer said: "The defendant 2011 Year conceived TOPAZ Brand and has been using the name ever since, Did not fraudulently adopt the mark. but, The plaintiff is dragging his feet unduly 10 A lawsuit was filed in court later.

Therefore, Respondent's revocation 2021 years 8 month 10 The application for an interim order shall be allowed, To protect the defendant from loss of business. " He further stated that, The defendant 2011 In order to promote TOPAZ The brand adopted a unique commercial look／packing, And the plaintiff for its bearing "TOTAL" Trademark products are not subject to copyright registration. He also suggested that, The plaintiff did not obtain "TOTAL" Word trademark registration, All of the plaintiff's registrations relate to graphic trademarks, So there is no infringement. Counsel for the defence referred to India "Trademark law" The first 17 Provision of article, When the trademark contains any elements common or non-distinctive to the industry, Such elements forming part of a registered trademark do not enjoy any exclusive rights.

The lawyer said, In the petition at No 28 segment, The plaintiff admits that it used word marks against the defendant "TOPAZ" Have no opinion. Counsel argued that the plaintiffs could not monopolize elements common to the cigarette industry, Such as images with statutory warnings. He said with empathy, Cigarette consumers are very selective about the brands they consume, Personal taste of cigarettes, length, Filter and other parameters have different options. however, Senior counsel for the plaintiffs argued in filing the counterclaim, The plaintiff never used it against the defendant "TOPAZ" Any objection to a written trademark, The objection is about the defendant's product TOPAZ Commercial appearance／Infringing packaging.

He pointed out that, The defendant intentionally copied the plaintiff's products TOTAL The packaging of, Cigarette paper, Aluminum foil and other basic features. Both packages contain the same statutory warnings, The warning element takes up most of the area of the package; Defendant's packing／The base color of the cigarette case is a distinctive shade of deep metallic black and dark blue, Concurs with the plaintiff; Both cigarette packs contain ribbed lines across the surface; The font and letters are in the same position on the front and back of both cigarette packs; Both use blue and silver paneling; All mention "Dual Flavors" (Double taste) and "Twin Flavors" (Double flavor) words; Both use gold dotted circles and gold rings to depict each party's brand name.

He further stated that, Defendant intentionally targeted Plaintiff's customers and sold infringing products, This amounts to an assault on the plaintiff TOTAL Brand product packaging and art works copyright. Due to the striking similarity, Consumers are being ripped off. allegedly, The defendant 2015 Annual intentional acquisition TOPAZ Trademark registration, But has not submitted any evidence since 2011 Year or 2015 Documents using the trademark since 2000. The plaintiff argues that the defendant is experienced／Habitual infringer, And several other cigarette companies have filed trademark infringement and counterfeiting lawsuits against the defendants.

Counsel also submits that, Even in this case, The defendant also violated it 2021 years 8 month 10 Ban of Japan. He also argued that, Plaintiff did not delay, Because he is 2020 Became aware of the defendant's products, His case has merit. Opinion of Delhi High Court The court says right at the beginning, The main issue of the ruling was whether the defendant had a right to use the trademark "TOPAZ" And commercial appearance and packaging. The court further stated that, At this stage of the case, The court is not in a position to elaborate on the case, Will rule only on the validity of a unilateral temporary injunction, And answer whether the plaintiff's claim of infringement and impersonation is likely to cause public concern TOTAL and TOPAZ The two products are confused, Loss of business and reputation to both parties.

The court overruled the defense's preliminary objection, That is, the plaintiff has delayed excessively in pursuing a trademark infringement or passing off action 10 years. The court cited Allied Blenders & Distillers P. Ltd. v Paul P. John & Ors A case. In this case, The court held that "A defense to acquiescence or delay in filing a lawsuit requires consideration if a plaintiff is not granted a provisional injunction because of acquiescence or delay in filing a lawsuit, Whether the public interest will be adversely affected" .

In dealing with plaintiff's claim that defendant infringed Plaintiff's trademark, Malicious copying of plaintiff's products TOTAL The basic features or brand identity of the dissent, The court examined the images before it, Hold that the defendant plagiarized TOTAL The color and design of the brand cigarettes are well documented, The cigarette has a gold dotted circle on it, It has a golden circle inside it, The circle is placed on the cigarette paper that forms part of the plaintiff's cigarette butt, The defendant copied these designs to the letter. About commercial appearance and packaging, The court noted that there were in fact striking similarities.

In view of the above, The Court stated without expressing any opinion on the substance of the case, Even the defendant has a solid case, but 2021 years 8 month 10 The unilateral temporary injunction granted to the plaintiffs on Wednesday requires no intervention. The appeal was therefore dismissed.

(Compiled from www. latestlaws. com) translation: Rason group　proofread: Wang Dan