COLGATE PALMOLIVE COMPANY

VS. 108 (2003) DLT 51

ANCHOR HEALTH AND BEAUTY
CARE PVT. LTD.
FACTS OF THE CASE
•The plaintiff were selling tooth powder under the trademark
‘colgate’ in cans bearing distinctive get-up and colour scheme.
•The colour configuration was purportedly applied by the
defendants on their cans for a similar range of products.
•Colgate alleged that Anchor had adopted similar trade dress in
terms of layout, get-up and colour combination with the obvious
intention to cash upon the plaintiff’s reputation and goodwill.
VISUAL REPRESENTATION
QUESTION OF LAW

Has the defendants committed an offence of ‘passing-off’

the goods of the plaintiff by adopting a similar trade-dress
particularly the colour combination of ‘red and white’?
WHAT IS ‘TRADE DRESS’?
•Trade Dress encompasses the Get-up i.e. the product packaging in which the product
is marketed; and the Product Configuration i.e. the actual product design.
•It is the total image of the product.
•It includes size, colour pattern, shape and external configuration or the package or
the container, wrappers and label, texture, graphics, the style of writing, directions of
use printed etc.
•It extends beyond the mere physical attributes of the product or its get-up; and
covers all those attributes for which the trader enjoys goodwill.
ARGUMENTS OF THE
PLAINTIFF
•There is no objection to the use of colour alone as a trademark, where that colour has
attained "secondary meaning" and therefore identifies and distinguishes a particular
brand (and thus indicates its "source").
•The containers or goods of particular get up with distinctiveness also acquire the
protection like that of a trade mark.
•Hoffmann-La Roche & Co. v. DDSA Pharmaceuticals Limited
"Goods of a particular get-up just as much proclaim their origin as if they had a
particular name attached to them, and it is well known that when goods are sold with
a particular get-up for long enough to be recognized by the public as goods of a
particular manufacturer it does not matter whether you know who the manufacturer
is."
White Hudson & Company Limited v. Asian Organization Limited:
The plaintiffs' get-up had become distinctive of their goods, that the get-up of the
defendants' sweets resembled the plaintiffs' to such an extent as to lead to confusion,
that the difference in the names printed on the wrappers was not sufficient to
distinguish the goods in the eyes of a purchasing public largely unable to read
English, and that passing-off had therefore been established.
•The shape and the size of the containers of the plaintiffs whenever plaintiffs come
out with new container also shows or demonstrates its intention to encash upon the
reputation and goodwill of the plaintiff.
ARGUMENTS OF THE
RESPONDENTS
•Marks must be remembered by General Impression or by some significant details
and, not by any photographic recollection of the whole.
•The offence of Passing-off is not made out if there is an added material showing the
source and origin besides many other qualities of the goods.
•Kellogg Company v. Pravin Kumar Bhadabhai:
The prominent display of the words 'Kellogg's' in bold red letters in white
background inside the square on the left-top appellant's carton cannot go unnoticed
by any buyer. We have to understand the learned Judge's words "trade dress of the
plaintiff is entirely different', in that light, prima facie.
•A difference in names is enough to warn the public that they are getting one trader's
goods and not the others
Kuber Khaini Pvt. Ltd. v. Prabhoolal Ramratan Das Pvt. Ltd
That except the colour combination the name and the get-up are different altogether
and further that there are dissimilarities appearing on the face of those
pouches/wrappers and, therefore, there is no scope for purchaser being misled. If a
purchaser wants to purchase his goods, he must know the goods he is purchasing.
The different name is a piece of evidence that the buyer will go by the name as well
and therefore, there is no question of being deceived.
JUDGEMENT OF THE COURT
•The customer gets the overall impression as to the source and origin of the goods from visual
impression of colour combination, shape of the container, packaging etc.
•Illiterate, unwary and gullible customers get confused as to the source and origin of the goods
that they have been using for longer period by way of getting the goods in a container having
particular shape, colour combination and getup.
•If the first glance of the article without going into the minute details of the colour combination,
getup or lay out appearing on the container and packaging gives the impression as to deceptive
or near similarities in respect of these ingredients, it is a case of confusion and amounts to
passing off.
•If there is substantial reproduction of the colour combination in the similar order either on the
container or packing which over a period has been imprinted upon the minds of customers it
certainly is liable to cause not only confusion but also dilution of distinctiveness of colour
combination.
•It is not the diligent or literate or conscious customer who always remain conscious,
but the unwary, illiterate and gullible persons who determine by arriving at a
conclusion whether the infringed goods are confusingly similar in colour
combination, get up, lay-out printed over the container or packing.
•It is the similarities and not the dissimilarities which go to determine whether the
action for passing off is required or not.
•The test is whether there is likelihood of confusion or deceptiveness in the minds
of unwary customers irrespective of dissimilarities in the trade name.
COMMENT

No Cause for confusion if marks prominently displayed.

Product Design and not Product Packaging.

Dilution of Literacy as a consideration.

Difference between Trade dress similarity and Trademark

similarity.