Delhi High Court
Dabur India Limited vs Emami Limited on 22 May, 2026
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Manmeet Pritam Singh Arora
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 25.02.2026
Judgment delivered on: 22.05.2026
Judgment uploaded on: As per Digital Signature
+ FAO(OS) (COMM) 23/2026 CM APPL. 9031/2026
DABUR INDIA LIMITED ..... APPELLANT
versus
EMAMI LIMITED ..... RESPONDENT
Advocates who appeared in this case
For the Appellant : Mr. Sandeep Sethi, Sr. Advocate with Ms.
Kripa Pandit, Mr. R. Jawahar Lal, Mr.
Anirudh Bakhru, Mr. Prabhu Tandon, Mr.
Christopher Thomas, Ms. Meghna Kumar,
Mr. Krisna Gambhir, Ms. Shreya Sethi and
Ms. Aayomi Sharma, Advocates.
For the Respondent : Mr. Abhimanyu Bhandari, Sr. Advocate
with Ms. Roohe Hina Dua, Mr. Harshit
Khanduja, Ms. Shrutika Garg and Mr.
Piyush Jain, Advocates.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
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
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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:-
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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:-
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(relevant portion has been extracted below for reference)
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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.
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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:-
S. TRADEMARK REG. CLASS STATUS DATE OF
No. NO. REGISTRATION
1. NAVRATNA 785156 03 REGISTERED 06.01.1998
(LABEL)
2. NAVRATNA 785157 05 REGISTERED 06.01.1998
(LABEL)
3. NAVRATNA OIL 1068166 05 REGISTERED 20.12.2001
(RED TRADE
DRESS DEVICE)
4. THANDA 1305653 03 REGISTERED 27.08.2004
THANDA COOL
COOL (DEVICE)
5. THANDA 1305654 05 REGISTERED 27.08.2004
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THANDA COOL
COOL (DEVICE)
6. NAVRATNA OIL 167705 05 REGISTERED 16.04.2008
DEV (RED TRADE
DRESS DEVICE)
7. HALKA HALKA 1802168 03 REGISTERED 01.04.2009
COOL COOL
8. THANDA 2146193 03 REGISTERED 18.05.2011
THANDA COOL
COOL
9. THANDA 2146194 05 REGISTERED 18.05.2011
THANDA COOL
COOL
10. THANDA 2146195 03 REGISTERED 18.05.2011
THANDA
11. THANDA 2146196 05 REGISTERED 18.05.2011
THANDA
12. COOL COOL 2146197 03 REGISTERED 18.05.2011
13. ZYADA THANDA 2146198 05 REGISTERED 18.05.2011
ZYADA COOL
14. ZYADA THANDA 2259420 05 REGISTERED 30.12.2011
ZYADA COOL
15. ZYADA THANDA 2259421 05 REGISTERED 30.12.2011
ZYADA COOL
16. NAVRATNA 3079175 03 REGISTERED 14.10.2015
(LABEL)
7. The respondent/plaintiff claimed that their product is sold in bottles,
which have been registered as designs under the Designs Act, 2000. The
details of which are as under:-
S. TITLE REG. STATUS DATE OF IMAGE
No. NO. REGISTRATION
1. NAVRATNA 253389 REGISTERED 23.04.2013
OIL
(BOTTLE
DESIGN)
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2. NAVRATNA 279325 REGISTERED 11.01.2016
OIL
(BOTTLE
DESIGN)
8. Further, they also claimed copyright over the label of the product of
the respondent/plaintiff as under:-
S. TITLE REG. NO. STATUS DATE OF
NO. REGISTRATION
1. HIMANI NAVRATNA A-58209/2000 REGISTERED 10.01.2001
OIL (LABEL)
2. HIMANI NAVRATNA A-67884/2004 REGISTERED 01.07.2004
TEL (LABEL)
3. HIMANI NAVRATNA A-86299/2009 REGISTERED 23.07.2009
OIL (WITH DEVICE
OF SAINT)
9. It is their case that they have spent a substantial amount of money in
advertising through all available media, i.e. newspaper, journals, television,
etc. They have also promoted their products continuously since 1989-90.
They have drawn our attention to their sales turn over from the financial
year 1990-91 to 2021-22 with the sales in the last financial year 2021-22
being Rs.58,562.25 lacs.
10. According to the respondent/plaintiff, they use a distinctive red
packaging to sell their product with having made minor modifications in the
packaging which keep changing with times, however, the distinct trade
dress of the product which is also red in colour has remained the same
throughout. The image of the product of the respondent/plaintiff is
reproduced as under:
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11. It is their claim that the respondent/plaintiff have been selling their
product continuously and extensively over 30 years across India along with
the set trade dress and under their trade mark. Due to which the marks of
the respondent/plaintiff have acquired immense goodwill and reputation.
12. According to the respondent/plaintiff, they came to learn of the
defendant sometime in June, 2023 having launched a similar product which
was sold in bottles similar to that of the respondent/plaintiff. The product of
the appellant/defendant is visually, structurally and phonetically similar to
the product of the respondent/plaintiff. It is their claim that the same is
deceptively similar as the defendant/appellant have willfully and with mala
fide copied elements from the product of the respondent/plaintiff and have
passed off their products as that of the respondent/plaintiff. It is alleged that
the defendant/appellant have also adopted the marks ‘THANDA TAEL’,
‘COOL KING’, ‘COOL OIL’, ‘COOL KING THANDA TAEL’ and
‘NAYA DABUR COOL KING THANDA TAEL’ as being deceptively
similar to the marks of the respondent/plaintiff. It has been alleged by them
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that since the marks are deceptively similar, it has led the consumers to
believe that there is an association between the products of the
respondent/plaintiff and the appellant/defendant which does not exist.
13. The products of the respondent/plaintiff and those of the defendant/
appellant can be seen as under:
Respondent/plaintiff’s product Appellant/defendant’s product
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14. It is the case of the respondent/plaintiff that even the sachets of the
product of the respondent/plaintiff have been slavishly imitated by the
appellant/defendant and that the sachets and the bottles of the appellant’s
product bear the terms Peace-‘Raahat’ (राहत), Comfort-‘Aaram’ (आराम)
and Freshness-‘Tarotaazgi’ (तरोताज़गी) in Hindi. The sachets of both the
parties are as under:
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Respondent/Plaintiff’s & Appellant/defendant’s
product product
15. Findings of the learned Single Judge in the Impugned Judgment can
be summarised as under:
15.1 The scope of the application before the learned Single Judge
was restricted to the prayer of passing off and had claimed no
monopoly in isolation over the colour red, herbs or the word
cool or thanda but rather the distinctive combination over the
same. The learned Single Judge had held that passing off is
based on similarities of get up of packaging used by the
appellant/defendant which would amount to misrepresentation
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observations by the learned Single Judge was that the confusion
must be caused by the distinctive features of the getup which
are peculiar to the product of the respondent/plaintiff and the
respondent/plaintiff cannot pick and chose the elements of the
getup and the same must be considered as a whole.
15.2 The respondent/plaintiff had submitted before the Court that
their product was launched in January, 1989 and has been in
continuous and uninterrupted use since then. Their claim was
also that the product has a total market share of 66% as of 2022
in the cooling oil segment. The respondent/plaintiff had
obtained various trademark, copyright and design registrations
in their product. Their presence on public media increased
exponentially given the amount of money spent on promotion
publicity and advertisement. They had also referred to their
turnover which has increased from Rs.14.77 lacs in the year
1990-91 to Rs.58562.25 lacs in 2021-22. The said turnover had
been referred to show the goodwill of the respondent/plaintiff
and that the product has been sold for over 30 years across India
with only minor modifications. The packaging can be identified
from the shape of the bottle with red packaging containing
images of amla, ice blocks, white flowers, one hibiscus flower
and is accompanied by the phrase in a white colour font ‘with
nine active herbal ingredients’. This is said to be the trade dress
which have become exclusive to the respondent/plaintiff.
15.3 The use and placement of the hibiscus flower, ice blocks and
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ayurvedic herbs along with trade dress such as colour of
packaging, colour of cap, colour of the liquid, shape of the
bottle and the use of combination of red, white, yellow and gold
along with the essential features, which have been stated above
with the words ‘Raahat’, ‘Aaraam’ and ‘Tarotaazgi’ in the same
order. The learned Single Judge had held that the trade dress of
the respondent/plaintiff is deceptively similar to the product of
the appellant/defendant.
15.4 It was held by the learned Single Judge that the common
features between the trade dress cannot be a mere coincidence.
Even the quantity of oil i.e., 270 ml is common to both the
products. An overall comparison at the point of sale creates an
impression that the impugned trade dress is an imitation of the
product of the respondent/plaintiff.
15.5 It is not necessary for Courts to have a side-by-side comparison
to determine deceptively similarity between the products. The
Court was of the opinion that it is sufficient if there is an overall
similarity in the idea or impression assessed from the
perspective of the average consumer.
15.6 Another aspect which was commented by the learned Single
Judge was that the appellant/defendant had not offered any
explanation or a bona fide reason for adopting the impugned
trade dress with identical features to that of the
respondent/plaintiff. The test for determining the question of
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passing off must focus on the similarities rather than on
dissimilarities. The overall impression that is given upon a first
glance is crucial for identifying whether there is a case for
passing off. The Court also held that based on an overall
impression, it is evident that the product is likely to cause
confusion as the dominant similarities between the trade dress
of the impugned product overwhelm the minor differences. The
argument that the well known house mark would dispel the
confusion could not have been accepted in view of the overall
similarities between the products.
15.7 The learned Single Judge had held that the respondent/plaintiff
established a prima facie case given their consistent and
uninterrupted use. Also having considered the sales turnover the
Single Judge had held that the respondent/plaintiff
demonstrated ample reputation and goodwill. Whereas the
appellant/defendant launched its product in 2023 and there is no
dispute that the product of the respondent/plaintiff had already
established itself well in the market at the time when the
product of the appellant/defendant was launched. Based on this,
it cannot be stated that the appellant/defendant is not attempting
to ride on the goodwill of the respondent/plaintiff.
15.8 The respondent/plaintiff could not have claimed a monopoly
over the red colour, herbs, hibiscus flower as individual aspects.
However, the combination and arrangement of the same results
in a distinctive ensemble and the same having been in use over
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a considerable period of time has acquired a secondary meaning
which enures to the favour of the respondent/plaintiff. Even if
the individual components of the trade dress belonging to the
respondent/plaintiff are common to the trade, the overall get up
of the product must be protected.
15.9 The learned Single Judge had held that the reliance of the
appellant/defendant on third party material does not disentitle
the respondent/plaintiff and the respondent/plaintiff is not
required to go after every small infringer.
15.10 Considering the above reasoning, the learned Single Judge
deemed it appropriate to grant the relief of temporary injunction
in favour of the respondent/plaintiff and had restrained the
appellant/defendant from selling their product i.e. ‘Cool King
Thanda Tael’ along with their trade dress.
SUBMISSIONS ON BEHALF OF THE APPELLANT
16. Mr. Sandeep Sethi, learned Senior Counsel appearing with Ms. Kripa
Pandit has, at the very outset, argued that the impugned judgment has
ignored settled principles of law regulating grant of interlocutory injunction
in terms of the judgment in the case of Wander Ltd. and Anr. v. Antox
India P. Ltd, 1990 (Supp) SCC 727, more so, in terms of paragraph 14 of
the said judgment.
17. Another argument that has been advanced by Mr. Sethi is that
although the arguments advanced on behalf of the appellant /defendant have
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been heard by the learned Single Judge and even recorded the same in the
impugned judgment, however, the said judgment does not deal with them in
its findings. The said submissions have been recorded in the impugned
judgment from paragraphs 6.1 to 6.13, but have not been dealt with. The
Appellant’s submissions were primarily made on overt and vast
dissimilarities, considering settled principles for proving passing off. No
evidence in support of the respondent’s sales in the current trade dress/
label have been submitted and that no single entity can be granted
monopoly over descriptive and common elements. Mr. Sethi has drawn our
attention to the compartive chart at page no. 25 of the grounds of the appeal
to show the dissimilarities between the products.
18. Mr. Sethi has argued that the present case is not for infringement but
rather only for passing off. He stated that it is an admitted position as has
been recorded in the orders dated 29.02.2024 and 23.08.2024 of the learned
Single Judge, wherein the respondent/plaintiff expressly gave up its claim
pertaining to the design of the bottle, infringement of copyright,
infringement of trademark and disparagement, and confined its claim solely
to passing off. Therefore, the learned Single Judge was to consider the
claim only for passing off and confine the same to the trade dress / get-up,
which is not a subject matter of trademark registration.
19. Mr. Sethi is of the view that elements of passing off not found to be
established and the impugned judgment does not find that the ingredients of
passing off are made out. It is his case that the law for establishing a case
for passing off is well settled and that the respondent/plaintiff must satisfy
the triple test being that; (a) there must exist goodwill and reputation in a
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particular mark or label or trade dress; (b) the possibility of deception or
misrepresentation must also be established; and (c) likelihood of damage
must also be present. He has argued that the impugned judgment does not
record that there is any goodwill or reputation attached to the respondent’s
product, or that there has been misrepresentation by the appellant or a case
for likelihood of damage has also not been made out.
20. It is the case of the appellant as argued by Mr. Sethi that since neither
the triple test has been satisfied nor the same has been established before
the learned Single Judge, therefore, the relief for passing off ought not to
have been granted. More so, since the aspect of goodwill has not been
established, it is incumbent upon the respondent to show sales not in respect
to the entire range of products of the said company but also show sales
figures of the concerned product. In this regard, he has placed reliance on
paragraph 13 of a judgment of the Supreme Court in the case of Brihan
Karan Sugar Syndicate Private Limited v. Yashwantrao Mohite Krushna
Sahakari Sakhar Karkhana, 2023 INSC 831.
21. As per Mr. Sethi, the respondent failed to plead or establish, even
prima facie, sales and advertising figures attached to the Respondent’s trade
dress and label. Instead, the Respondent filed sale figures of products under
the umbrella brand ‘NAVRATNA’, which includes a variety of products
and packaging including of hair oils, almond oil, talcum powders and
perfumes, besides the subject red-coloured oil. The respondent has also not
submitted any consumer surveys, brand recognition studies, or consistent
third-party references to establish that the current trade dress/ label adopted
by the respondent only in 2016, has acquired distinctiveness. In this regard,
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reference has been made to paragraph 34.5 of the judgment in the case of
Pernord Ricard India Private Limited and Anr. v. Karanveer Singh
Chhabra, 2025 SCC OnLine SC 1701.
22. Mr. Sethi has stated that the respondent sought to file an Affidavit on
the last date of arguments before the learned Single Judge, which affidavit
was refused and rightly not taken on record by the learned Single Judge.
23. On the second aspect of passing off being misrepresentation, Mr.
Sethi has stated that the appellant placed on record material that there are
numerous third-party players in the Red Hair Oil market which use similar
elements such as red colour packaging, ice cubes, hibiscus, herbs, etc. as
part of their trade dress and label and as such the aforesaid elements are
common to trade of red coloured oil and incapable of exclusive
appropriation by the Respondent. Neither the respondent is the first adopter
nor user of the red-coloured trade dress and label in the market. A third
party competitor by the name of Himtaj Medicare adopted the red-coloured
Oil and the red-coloured trade dress / label in the year 1956 for Herbal Cool
Oil. Himtaj Medicare, was the first to adopt and introduce illustration of
ice/snow and flowers on their Hair oil packaging. He stated that the
respondent in its Annual Report of the year 2004-2005 acknowledges
HIMTAJ OIL as a major player and a competitor in the market at page no.
1111 of the paper-book. It is his case that there are a number of other third
party players, which have since adopted similar aspects for the trade dress
for red coloured oil predominately a red label with similar features of
hibiscus flower, herbs, etc., and such elements have become customary
among the consumers for the said product.
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24. He has referred to the impugned judgment to state that such a
category of the product has certain elements and features common to the
trade dress. It is his case that the respondent cannot claim monopoly on red
colour, herbs, hibiscus flower components of the trade dress, if they are
considered individually. Mr. Sethi stated that even though the individual
components of the respondent’s trade dress are common to the market
although as far as the argument the overall get-up of the respondent’s trade
dress requires protection is concerned, Mr. Sethi has argued that the said
observation is inconsistent. If the individual elements of the trade dress are
considered common to the market then the combination thereof cannot be
said to constitute passing off and therefore, the impugned judgment
erroneously concludes that the respondent’s trade dress deserves protection.
25. Mr. Sethi has also argued that the impugned judgment does not take
into account the house mark of the appellant being ‘DABUR’ under which
the trade name ‘COOL KING’ operates. It is his case that the house mark of
the appellant has been declared as a well known mark and is enough to
distinguish the product from that of the respondent’s. It is settled law, that
when the overall impression of the product is considered from the
perspective of an average consumer with imperfect recollection, the
prominent display of the house mark clearly distinguishes product from
others, even if there are some common or descriptive elements. In these
circumstances, any claim of likelihood of confusion would be incorrect, as
the prominent use of the well-known house mark together with the distinct
product name effectively removes any scope for confusion in trade dress
and negates any claim of misrepresentation by the Respondent.
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26. On the aspect of likelihood of damage, Mr. Sethi is of the opinion
that since there is no similarity between the products, no occasion for
likelihood of damage would arise. The features that are common between
the two labels such as hibiscus flower, ice blocks, menthol leaves and the
use of descriptive words such as “THANDA”, “COOL”, “COOL TEL”,
and “COOLING OIL” are all common and generic in nature being common
to trade and as per settled law, cannot be afforded protection. Furthermore,
since the respondent had given up the claim over the colour ‘Red’ in the oil
of the impugned trade dress, the impugned judgment ought to have
analysed the same based on the outer packaging and with respect to the
transparent bottles of both parties, in order to consider similarities in the
trade dress. Mr. Sethi has drawn our attention to the dissimilarities in
competing trade dress in the grounds of appeal. In view of the discernible
dissimilarities evident from the chart, the finding of overall similarity as per
the impugned judgment ought to be considered perverse.
27. According to Mr. Sethi, the impugned judgment also has not taken
into account the distinctive bottle of the appellant which has the purpose of
cooling the oil through the cooling tube and is a unique selling point for the
appellant. The said cooling tube by itself makes the appellant’s bottle and
the label starkly different from that of the respondent’s. Mr. Sethi is of the
view that since the respondent is a major player in the market of the red
coloured cooling oil, it cannot in law imply likelihood of damage by
adoption and use by the appellant of the common aspects of the trade dress.
On this aspect, Mr. Sethi has argued that it is necessary for the respondent
to establish that their trade dress in question had acquired distinctiveness
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and secondary meaning through trial that the elements of their trade dress
would only be associated with the respondent alone.
28. On the other hand, Mr. Sethi submitted that the respondent does not
rely on their trade dress but rather on the brand ‘NAVRATNA’ to sell their
goods in the market. Additionally, there is no case of dishonest adoption
made out as the alleged similarities in trade dress, are either generic or
elements that are common to trade. The only overlap identified is the red
colour of the oil, the claim of which the respondent has expressly given up,
for the reason that it is common to the trade.
29. Mr. Sethi has referred to Kerly on ‘Law of Trade Marks 12th Ed,
1986’, to state that in cases where trader’s goods are recognised by their
general appearance, or “get-up” such cases are rare, since few traders rely
on get-up alone to distinguish their goods, so that trade names and word
trademarks are ordinarily present too, and it is further stated that, a
difference in name is enough to intimate the public about the origin of the
goods. In support of his arguments he has referred to Kellogg Company v.
Pravin Kumar Bhadabhai, (1996) 16 PTC 187, and Britannia Industries
Limited v. ITC Limited FAO (OS) (COMM) 77/2016 to argue that the
respondent has failed to establish any of the aforesaid elements necessary to
prove passing off.
30. Another limb of argument taken by Mr. Sethi is that findings of
secondary meaning in the absence of any cogent evidence and the same not
having been pleaded by the respondent are beyond the scope of the suit. He
argued that despite expressly noting that the individual elements sought to
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be protected by the respondent are common to trade and incapable of
exclusive appropriation, the impugned judgment nevertheless proceeded to
hold that the combination, arrangement, and overall presentation of such
common elements had acquired secondary meaning. It is his argument that
the said findings in the impugned judgment are without any cogent
evidence and contrary to the settled principles of law and are therefore
without reasoning. The onus to demonstrate and prove exclusivity for the
purposes of secondary meaning lies on the respondent and nothing has been
placed on record to establish the same. According to him, in the impugned
judgment, there is no finding or reference to any document or evidence to
support the finding of “secondary meaning” such as consumer surveys,
brand recognition studies, or consistent third-party references etc., in favour
of the Respondent in reference with Pernord Ricard India Private Limited
and Anr. Vs Karanveer Singh Chhabra (supra).
31. On the other hand, Mr. Sethi has placed reliance on the record to
show that there are numerous players in the market having similar elements
such as like red colour packaging, ice cubes, hibiscus, herbs, etc., as part of
their trade dress. He also stated that it is the case of the respondent, that the
current trade dress was only introduced in the year 2016. He stated that the
packaging or trade dress adopted by the respondent today, differs
considerably compared to the trade dress and labels used prior to 2016.
Further, as is evident from the respondent’s documents, the arrangement
and combination of elements constituting its trade dress have undergone
material changes over time. It is due to this fact that the current trade dress
and label used by the respondent has not attained any distinctiveness let
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alone, secondary meaning.
32. He has also taken an objection over the fact that no monopoly ought
to accrue over descriptive elements and terms in the packaging. He has
argued that impugned judgment has further erred in holding that the alleged
distinctive combination of the impugned trade dress is deceptively similar
to the respondent-plaintiff’s trade dress by completely overlooking the fact
that the elements claimed by the respondent to be similar are all common
being descriptive elements, that are generic to the hair oil market.
Furthermore, the impugned judgment while referring to the trade dress
which uses the words ‘Raahat’, ‘Aaraam’ and ‘Tarotaazgi’ ought not to
have held that the same is similar to the respondent-plaintiff’s trade dress,
since it is settled law, that no one party can have a monopoly over
descriptive terms, especially when the said tagline has not been registered.
In fact, the respondent has consciously not even applied for their
registration as such descriptive words would never have been registered. In
this regard he has made a reference to a judgment of a Coordinate Bench of
this Court in Uma Impact Private Ltd & Anr v. ML Brothers LLP
FAO(OS)(COMM) 68/2019.
33. Mr. Sethi has summarised the grounds of appeal against the
Impugned Judgment as under:
33.1 That the trade dress of the appellant is not similar to that of the
respondent and the components of the packaging which have
been deemed as the essential features are infact descriptive and
common to the trade, not to be monopolised by a single entity.
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33.2 The colour of the packaging, colour of the cap and the colour of
the liquid have been considered in the impugned judgment
whereas the respondent/plaintiff has given up its claim over the
colour red.
33.3 The impugned judgment also considered the quantity of oil i.e.,
270 ml in both the competing products as a factor against the
appellant/defendant. Such a comparison of quantity of oil
cannot be considered while analysing distinctiveness. The
products of both the parties are sold in different quantities and
sizes other than 270 ml bottle in the market. The comparison of
the sizes in which the products of the parties are sold are as
under:-
Emami Navratna Dabur Cool King
MI MI
50/45 42
100/90 87
180 187
200
270 270
300
450 470
500
600 —
750 —
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33.4 The impugned judgment in effect grants protection to the
individual elements of the product, which have been held to be
common to the trade and incapable of exclusive monopoly.
33.5 The impugned judgment has also erred while holding that the
house mark of the appellant/defendant ‘Dabur’, which has been
declared as a well known mark would not dispel confusion.
Even when the brand name/mark ‘DABUR COOL KING’
occupies approximately 60% of the trade dress and therefore,
no consumer would mistake one for the other.
33.6 The finding of goodwill which has been noted in the impugned
judgment from the year 1989 in favour of the
respondent/plaintiff is erroneous since the current trade dress,
which is a subject matter of the suit has only been used by then
since the year 2017.
33.7 The respondent/plaintiff has not produced any evidence to show
that there is established goodwill and reputation of the
impugned trade dress in the market but rather wrongly
considered the purported sales under the brand ‘NAVRATNA’,
which comprises of multiple products, which are not limited to
hair oil.
33.8 Another factor which has not been noted in the impugned
judgment is that the respondent/plaintiff has materially altered
its packaging over the years and adopted a completely new
trade dress in the year 2016. Substantial differences exist
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between the earlier and the current packaging in terms of all
aspects including colour scheme, layout, visual elements, bottle
shape and overall get up. The extension of the goodwill which
has been established with the earlier packaging cannot be
extended to the subsequent trade dress.
33.9 The impugned judgment has also erred by holding that the trade
dress had acquired secondary meaning based on the
combination of the individual elements of the trade dress. Such
an argument was never taken before the learned Single Judge
and no evidence was produced in this regard but rather
extensive third party usage of such elements either individually
or in combination in the hair oil category including prior use
such as the one by ‘Himtaj’ negates any claim of distinctiveness
or exclusivity and no evidence has been led on this aspect.
33.10 The impugned judgment has not applied the trinity test for
passing off with respect to the trade dress of the
respondent/plaintiff contrary to the principles laid down by the
Supreme Court in Brihan Karan Sugar Syndicate Private
Limited (supra).
34. Mr. Sethi has argued that ingredients for granting an injunction not
made out. The grant of an interim injunction necessarily requires a judicial
determination of the three settled parameters, i.e., existence of a prima facie
case, balance of convenience, and irreparable injury. In this regard, he has
referred to Pernord Ricard India Private Limited and Anr. (supra). The
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impugned judgment is silent on this aspect and there is no clear finding on
this issue.
35. Mr. Sethi has stated that the reliance which has been placed by the
appellant/defendant on the order dated 09.08.2023 passed in CS(COMM)
No. 532 of 2023 misconceived since the said order was set aside vide Order
dated 21.08.2023 by the Division Bench of this Court in FAO (OS)
(COMM) 171/2023. He has placed reliance to Annexure-B table
distinguishing each judgment relied on by the Respondent. It is his case that
the impugned judgment suffers from serious errors of law and fact, ignores
material on record, returns findings beyond the pleadings, and grants relief
without satisfying the settled requirements for interim injunction. He
prayed that the impugned judgment be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
36. Mr. Abhimanyu Bhandari, learned Senior Counsel along with Ms.
Roohe Hina Dua have entered appearance on behalf of the
respondent/plaintiff has at the outset stated that the appeal against an
interlocutory injunction is an appeal on principle and the Appellate Court
does not substitute its discretion where exercise of such power is patently
against the law. He drew our attention to the judgments in Wander Ltd.
(supra) and Ramakant Ambalal Choksi v. Harish Ambalal Choksi, (2024)
11 SCC 351, wherein the said parameters in the former were further
restricted by the later pronouncement. The sales of the respondent/plaintiff
in the cooling oil market is a matter of record and that the
respondent/plaintiff commands a significant goodwill and has supported its
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claim by showing a year wise turnover from FY 2009-10 till FY 2024-25.
In this regard, he has relied upon the impugned judgment more so in
paragraph 7.10 in support of his claim along with the additional affidavit
dated 14.10.2025 indicating the sales of the product of the
respondent/plaintiff. According to Mr. Bhandari, a comparison of the
products would show that the appellant/defendant has sought to pass off
their product as of the respondent/plaintiff, the same is depicted as under:
37. Mr. Bhandari has placed on record a substantial list of advertisements
spanning over several decades, including high-profile celebrity
endorsements. The record further reflects media expenditure exceeding ₹49
crores per year, as per the certificate issued by the Chartered Accountant,
which substantiates the marketing expenditure incurred by the
respondent/plaintiff in advertising the said product. He has stated that the
scale, continuity and consistency of the respondent’s advertising efforts
clearly demonstrate a long-standing goodwill, thereby leading to the public
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has rightly taken note of these materials and recorded clear findings
affirming the goodwill and distinctiveness in the product of the
respondent/plaintiff.
38. According to Mr. Bhandari, the argument that the product of the
respondent/plaintiff lacks goodwill is self defeating and contrary to the
appellant’s own conduct. According to him, the respondent is a market
leader in that segment and the appellant has attempted to impinge on the
said position. This he said so on the account of the fact that when the
product of the appellant was launched, their own advertisement referred to
the product/bottle of the respondent/plaintiff in reference to the product in
the cooling oil market. Such an adoption was neither accidental nor a mere
coincidence but rather a malafide and calculated commercial strategy with
the sole intention of riding on the goodwill of the respondent/plaintiff. He
has placed reliance on the judgments in the cases of Dabur Ltd. v. Shree
Baidyanath, 193 (2012) DLT 558, Cadbury India Ltd. v. Neeraj Food
Products, 2007 SCC OnLine Del 841, Ishi Khosla v. Anil Aggarwal, 2007
SCC OnLine Del 126 and Heinz Italia and Anr. v. Dabur India Ltd.
(2007) 6 SCC 1.
39. He stated that the appellant has sought to contend by relying on
various small market players that the respondent-plaintiff’s trade-dress is
common to trade. This argument according to him does not stand since the
closest competitor of the respondent/plaintiff is ‘Himgange’ which is a
green coloured oil followed by ‘Rahat Rooh’ oil which is red in colour. In
this regard, he has referred to the additional affidavit filed on 25.02.2026
and the Nielsen AC Report for the year 2024. In so far as the other market
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players are concerned in the red cooling oil market segment he argued that
the said players have a miniscule share in the market and cannot sustain the
argument that the said components are common to the trade. He has cited
the judgments in the cases of Pankaj Goel v. Dabur India Ltd., 2008 (38)
PTC 49 (Del) and National Bell Co. v. Metal Goods Mfg. Co. AIR 1971
SC 898 to argue that mere presence of third parties in the market does not
dilute the rights of the respondent.
40. Mr. Bhandari has drawn our attention to the market share of other
oils which are the competitors of the respondent/plaintiff along with their
market shares including their own product as under:
“Cooling oil category (overall) — MAT Dec’24
I. Navratna Cooling Oil (all variants:
Red/Green/others): 67.7% o
Navratna Red Oil: 52.4%
Navratna Extra Thanda Oil (Green): 14.7%
II. Himgange Oil (Green): 26.5%
III. Raahat Rooh (Red): 3.5%
Red cooling oils sub-category — MAT Dec’24
I. Navratna Red Oil: 91.3%
II. Raahat Rooh: 6.1%”
41. It is the case of the respondent/plaintiff so contended by Mr.
Bhandari that the appellant’s own conduct demonstrates acknowledgement
of the Respondent’s leadership in the cooling oil segment. Having
consciously attempted to compete against and draw comparison with the
Respondent’s product / bottle (as per their own Advertisement) as the
industry benchmark, such a plea is clearly an afterthought and is devoid of
merits. He has drawn our attention to the products of the competitors which
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are the dominant players in the market after the respondent as hereinunder:
42. Insofar as the argument concerning that ‘Himtaj Oil’ being the
biggest competitor of the respondent in the cooling oil segment. He stated
even if it were to be assumed that ‘Himtaj Oil’ is a competitor, it is
submitted that the packaging of the said oil i.e., the bottle and the outer
packaging is entirely different in shape, presentation and overall get-up.
The same can be seen as under:
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43. Mr. Bhandari stated that the appellant’s own reliance on ‘Himtaj’, in
fact, demonstrates that no serious competitor in the cooling oil segment has
sought to copy the respondent’s trade dress. According to him, the appellant
stands isolated in its deliberate imitation of the respondent’s trade dress. If
‘Himtaj’, allegedly a significant competitor, did not consider it necessary to
adopt the respondent’s trade dress, the appellant’s decision to do so
becomes even more suspicious and indicative of the slavish imitation and
dishonest adoption.
44. It is the case of the respondent that the appellant’s entire argument is
designed to divert attention from the real issue, being its dishonest adoption
of the respondent’s trade dress. In the absence of any bona fide explanation
for such an adoption in 2023, the appellant is now estopped from
contending that the respondent/plaintiff’s trade dress or its constituent
elements are common to the trade, particularly, even when they themselves
have applied for registration of the very same elements. In this regard, he
has referred to a judgment in the case of Automatic Electric Ltd. v. R.K.
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Dhawan 1999 PTC (19) 81 (Del).
45. According to Mr. Bhandari, the appellant’s new line of argument
does not in any manner dislodge the finding of goodwill recorded by the
impugned judgment, nor does it furnish any explanation for its dishonest
adoption or rebut the clear finding of deceptive similarity. On the contrary,
it is inconsistent by the appellant’s own conduct at the time of launch of its
product in 2023 when they sought to pass off their own product as that of
the respondent/plaintiff.
ANALYSIS AND CONCLUSION
46. Having heard the learned Senior Counsel for the parties and perused
the record, the submissions of Mr. Sethi, can be summed up as under:-
i) Although, the arguments as advanced on behalf of the
appellant / defendant were heard and recorded by the learned
Single Judge in the impugned order, but the same were not
dealt with in the findings;
ii) No evidence in respect of the respondent’s sales in the current
trade dress/label have been submitted;
iii) No single entity can be granted monopoly over descriptive
and common elements;
iv) The grant of injunction is contrary to the judgment in the case
of Wander Limited (supra);
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v) The element of passing off not found to be established in as
much as there is no goodwill and reputation in the respondent/
plaintiff trade dress;
vi) There is no possibility of deception or misrepresentation;
vii) There is no likelihood of damage, to be caused to the plaintiff
/ respondent;
viii) The respondent / plaintiff has shown sales in respect of entire
range of products of the company and not with regard to the
impugned product;
ix) There is no misrepresentation as there are numerous third party
players in the Red Hair Oil market, who use similar elements
such as red colour packaging, ice cubes, hibiscus, herbs, etc. as
part of their trade dress and label and as such the aforesaid
elements are common to trade;
x) If the respondent cannot claim monopoly over the red colour,
herbs, hibiscus flower components of the trade dress, then
component thereof cannot constitute passing off;
xi) The impugned judgment does not take into account the house
mark of the appellant DABUR, under which the trade name
COOL KING OIL has been declared as a well known mark
and is enough to distinguish the product of the respondent;
xii) The cooling tube by itself makes the appellant’s bottle and the
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label starkly different from that of the respondent;
xiii) The respondent has failed to establish that its trade dress in
question is clearly distinctive; and
xiv) The respondent has not pleaded that the respondent’s get up
has achieved a secondary meaning; as such the learned Single
Judge could not have given the injunction.
47. At the outset, we may state that vide order dated 29.02.2024 and
23.08.2024 the respondent through Mr. Bhandari has given up its claim
pertaining to the design of the bottle; infringement of the copyright;
infringement of trade mark and disparagement and confined its claim solely
to the passing off. We may also state that Mr. Bhandari has not claimed
any monopoly over the colour red.
48. Having said that, the issue of passing off has to be seen on the basis
of similarities and get up of the packaging used by the appellant that
amounts to misrepresentation and damage to the respondent. There is an
obligation on the part of the respondent to prove that the get-up used by it is
a distinctive one and the appellant/defendant’s get up is similar enough to
deceive notwithstanding any other difference between the two sets of
goods.
49. The case of the respondent / plaintiff is that it has launched its
product in January 1989 and has been in continuous and uninterrupted use
since then. Mr. Bhandari has also stated that the respondent /plaintiff has
66% market share in the year 2022 in the Cooling Oil segment. It is also
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the case of respondent /plaintiff that impugned product is their only product
in cooling oil segment and that the turnover of the plaintiff / respondent
increased from Rs.14.77 Lacs in the year 1990-91 to Rs.58562.25 Lacs in
the year 2021-22. Mr.Bhandari has referred to the certificate from the
chartered accountant dated 26.06.2025, which is part of the pleadings
before the learned Single Judge filed on 14.10.2025, to show the sales of
the products marketed as Navratna Ayurvedic Oil (Red packaging) wherein
the sales pertaining to the Financial Years 2009-10 to 2024-25 have been
shown to total Rs.4927.03 Crores. This affidavit has been contested by
Mr.Sethi. He has stated that the said affidavit was not taken on record by
the learned Single Judge. However, we note the findings of the learned
Single Judge in the impugned order, more specifically in paragraph no.7.10,
the learned Single Judge has noted the sales pertaining to the product of the
respondent aggregating to Rs.4,927 Crores.
50. At this stage, we may state it is the submission of Mr. Sethi that the
respondent / plaintiff has not given the individual turnover or the turnover
of the impugned product NAVRATNA. We however note, that there is no
denial that the product NAVRATNA has a market share of 66%. The case
of the appellant is that it launched its product in the market in the year 2017
and the impugned packaging in the year 2023. It is a fact that the appellant/
respondent has not given the turnover of its impugned product “Dabur Cool
King/ Cool King Thanda Tail”. Therefore, it is clear that the respondent is
the prior user. Given the said factual position, the argument of Mr.Sethi
that no sales figures with regard to the impugned products were produced is
not tenable. At least, at this prima facie stage the certificate of the chartered
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accountant annexed with the additional affidavit dated 14.10.2025, is
enough to offset the argument of Mr.Sethi and established goodwill not
only of the respondent company, but also in the impugned products.
51. Mr. Sethi has relied upon judgment in the case S. Syed Mohindeen v.
P. Sulochana Bai, (2016) 2 SCC 683 as followed in Brihan Karan Sugar
Syndicate Private Limited (supra) to state that in a case of passing off the
goodwill of the product must be established not only through the figures of
the sale of the product, but also the expenditure incurred on its promotion
and advertising. There is no dispute on the said position of law; however,
the same has to be proved at the time of trial.
52. The Supreme Court has held that, at a prima facie stage for the grant
of temporary injunction, the statement of accounts signed by the chartered
accountant of the plaintiff indicating expenses incurred on advertising and
the promotion along with figures of sale may be material for consideration
which at the time of final hearing of the suit, must be proved. The said
judgments are trite law and even in the present case, the respondent/plaintiff
has at this nascent stage showed sufficient material to support their case,
which would be a subject matter of trial. Hence, to that extent, these
judgments do not aid the case of the appellant.
53. Though, it is the case of the respondent that it had adopted the
current trade dress / label with changed shape of the bottle in the year 2016,
but it consistently maintained similar get up effective from 1995 with
prominent mark of NAVRATNA in the following manner:-
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54. Prime facie we agree with the above submission. The difference in
the earlier label used by the respondent/ plaintiff and the present label does
not appear to us to be so stark, which requires the respondent / plaintiff to
independently establish the goodwill in respect of the present label as well.
55. It is the submission of Mr. Bhandari that, before marketing the
product in the present get-up, the appellant has changed the trade dress of
its product time to time in the following manner:-
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56. Be it noted the words Ayurvedic Oil – Ayurvedic Tel (आयुर्वेदिक
तेल), Herbs – Jadi Buti (जडी-बूटी), Peace – ‘Raahat’ (राहत), Comfort –
‘Aaram’ (आराम) and – Freshness – ‘Tarotaazgi’ (तरोताज़गी) are words
mentioned on the bottle of the respondent and are found matching on the
bottle of the appellant. There is also a yellow triangular colour banner on
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the left side of the bottle of the appellant which reads ‘New’ (नया) in Hindi,
which is similar to the one found matching in the respondent’s bottle.
Similar is the position in respect of sachet sold by the appellant as is clear
from the following:-
Respondent/Plaintiff’s & Appellant/defendant’s
product product
57. In fact we find that Mr. Sethi has not given any reason as to why the
appellant /defendant changed the trade dress/get-up of its product “HIM
SAGAR TEL” to “SUPER THANDA TEL”, to “COOL KING THANDA
TEL”. So, it follows that the possibility of the appellant’s goods being
passed off as goods of the respondent/ plaintiff cannot be ruled out.
58. Insofar as, the plea of Mr. Sethi that there are numerous third party
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players in the Cooling Oil market, who used similar elements of Red
Colour packaging, ice cubes, hibiscus, herbs, etc., as part of their trade
dress and label and as such the elements being common to the trade, there
cannot be any deceptiveness is concerned; the submission is opposed by
Mr. Bhandari, by drawing our attention to the oils manufactured by the
third parties to contend that their packaging/ trade dress is much different
from that of the respondent. We agree with the said submission, in view of
the packaging of the third parties in the following manner:-
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59. Whereas, Mr.Sethi, has also drawn our attention to other third party
players in the red cooling oil marketing segment and their packaging
depicted below:-
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60. Mr.Bhandari has contested the said submission by saying that the
other players in the cooling oil segment as referred to by Mr Sethi, do not
have different get-up/ trade dress and in any case they do not have a large
market share as compared to the respondent/plaintiff, as such not affecting
the respondent. It is settled position of law that the plaintiff is dominus litis,
it would be upto them to decide whether an action against trademark and
passing off is to be brought against such third party players. As stated
above in an action of passing off, the Court has to look at the overall
appearance of the product and not individual aspects/ attributes of the trade
dress including the house mark of the respondent which in itself has
acquired considerable goodwill over the years.
61. In view of our above conclusion, the plea of Mr.Sethi that Red
Colour packaging, ice cubes, hibiscus, herbs, flowers, etc., are common to
the trade for Red colour oil cannot be prima facie accepted. We agree with
the conclusion drawn by the learned Single Judge in the impugned order,
more particularly in paragraph no.21, which we reproduce as under:-
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“21. Having heard the learned Counsel for both the
Plaintiff and the Defendant and considering the material
placed on record, the overall comparison of the Defendant’s
Product with the Plaintiff’s Product shows that there is an
attempt to imitate the essential features of the Plaintiff’s
Trade Dress by the Impugned Trade Dress. The Impugned
Trade Dress is deceptively similar to the Plaintiff’s Trade
Dress as the essential features of the Plaintiff’s Trade Dress
such as colour of the packaging, colour of the cap, colour of
the liquid, shape of the bottle and the use of combination of
red, white, yellow and gold with the essential features of ice
cubes, hibiscus flowers, ayurvedic herbs are copied in the
Impugned Trade Dress along with the use of the words
‘Raahat’, ‘Aaraam’ and ‘Tarotaazgi’ in the same order. The
common features in the Plaintiff’s Trade Dress and the
Impugned Trade Dress does not appear to be a mere
coincidence. Even the quantity of the oil, i.e. 270 ml is
identical in both the Plaintiff’s Product and the Defendant’s
Product. The overall comparison of the get-up at the point
of sale creates an impression that the Impugned Trade
Dress is an imitation of the essential features of the
Plaintiff’s Trade Dress. It is not necessary to have exact
identity for side-by-side comparison between the Impugned
Trade Dress and the Plaintiff’s Trade Dress. It is sufficient
if there is an overall similarity in the idea or impression
assessed from the perspective of a consumer of average
intelligence having imperfect recollection as held in Cadila
Healthcare (supra). A holistic view of the Impugned Trade
Dress appears to be deceptively similar to the Plaintiff’s
Trade Dress. The Defendant has not offered any
explanation or bonafide reason for adopting the Impugned
Trade Dress having identical features to that of the
Plaintiff’s Trade Dress.”
(Emphasis supplied)
62. It follows on a comparison of the products of the parties, it is clear
that the overall similarity including the presence of the yellow triangle
which states “New” in Hindi, the flower, ice cubes, herbs even the terms
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‘Raahat’ (राहत), ‘Aaram’ (आराम) and ‘Tarotaazgi’ (तरोताज़गी) find
mention in the same sequence bereft of a justification for such an adoption
of the impugned trade dress including the common bottle size of 270 ml.
As such we find ourselves in agreement with the findings of the learned
Single Judge.
63. In so far as the submission of Mr.Sethi that the house mark of the
appellant being “DABUR” under which the trade name “COOL KING”
operates, and in that sense, the house mark being a well known mark is
enough to distinguish the product of the appellant from that of the
respondent. This submission has been contested by Mr.Bhandari by stating
that even “EMAMI” is well known mark and the house mark shall not have
any bearing or effect on the trade dress and get up, which has been adopted
by the appellant /defendant as late as 2023 with a clear motive to pass off
its product as that of the plaintiff’s / respondent’s.
64. Mr.Sethi, has also argued that if the individual elements of trade
dress are common to the trade then a combination thereof cannot be said to
constitute passing off. We do not agree with this submission. We concur
with the findings of the learned Single Judge that the test for passing off has
to be examined on the touchstone of similarities rather than the
dissimilarities. Mr.Sethi has also argued that apart from the features which
according to him are common to the trade, even the shape of the bottle is
distinctive which in its 270ml size has a unique cooling tube. We find that
both the products look similar enough to cause damage to the respondent’s
product and the appellant should not be allowed to blow hot and cold on
this aspect to suit its case.
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65. Mr. Sethi has also relied upon the decision in the case of Kellogg
Company v. Pravin Kumar Bhandbhai, (1996) 16 PTC 187 to say that the
presence of the house mark is a distinguishing feature. Whereas Mr.
Bhandari has opposed the said submission by relying on the judgments in
the cases of N. Ranga Rao and Sons v. Anil Garg and Ors. 2005 SCC
Online Del 1293 and Euro-Solo Energy Systems Ltd. v. Eveready
Industries India Ltd. 2009 SCC Online Cal 1991 and argued that the said
judgment does not lay an absolute rule that the house mark is a complete
cure for the overall similarity appearance. The trade dress has to be taken as
a whole and not in part/ in isolation in view of the judgment in Cadila
Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73. The
said principle is clear and has been upheld by the Courts that the same falls
under the anti-dissection rule in cases concerning trade mark and the same
has been upheld by the Supreme Court in Pernod Ricard (supra). However,
the Supreme Court in Pernod Ricard (supra) had held that the Courts are
not precluded from applying the dominant feature test. In the present case,
since there are similarities between the trade dresses of the parties, wherein
the respondent is the prior bona fide user of the same, we accept the
argument of Mr. Bhandari and are of the view the said judgment does not
help the case of Mr.Sethi.
66. In so far as the judgment cited by Mr.Sethi in the case of Uma
Impact Pvt Limited (supra) is concerned, the said judgment has been relied
upon by him to state that certain marks which are descriptive should not be
granted protection of registration. Needless to state that in view of the fact
that Mr.Bhandari has confined this appeal only to the aspect of passing off,
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the said judgment would not be of any help to the appellant.
67. Mr.Sethi has relied upon various judgments, being Star Bazar Pvt
Limited v. Trent Limited & Another, 2010 SCC OnLine Del 4764;
Marico Limited v. Agro Tech Foods Limited , ILR (2010) Supp. (3) Delhi
402; Holy Cow Foundation v. Patanjali Gramodyog Nyas (Trust), 2026
DHC: 146; Gensol Electric Vehicles Pvt Limited v. Mahindra Last Mile
Mobility Limited : 2025:DHC:116; Intex Technologies (India) Limited v.
M/s. Tech (India), 2017 SCC OnLine Del 7392; Meso Pvt Limited v.
Liberty Shoes Limited, AIR 2019 Bom 35; Valvoline Cummins Limited v.
Apar Industries Limited, 2013 DHC:6052; and Peshawar Soap and
Chemicals v. Godrej Soaps Limited, 2001 (58) DRJ 170 to state that the
presence of the house mark “DABUR” on the appellant’s packaging is
enough to allay any confusion in the minds of the consumer.
68. With regard to said submission, it is settled law in the case of passing
off, the consumer is taken to be a person of an average intellect and
imperfect recollection [Reference: Cadila Healthcare Ltd. v. Cadila
Pharmaceuticals Ltd., (2001) 5 SCC 73]. This combined with the fact that
the goods are being sold at a low cost, which would entail that the degree of
care exercised by an average consumer at the time of purchase would be at
a lower threshold, the presence of the house mark has little role to play in
this background, given the other overlapping features in the trade dress. In
other words, it is only the get up and trade dress of the product which will
determine the sale of the products and in view of the fact that trade dress
and get up of the appellant product is likely to cause confusion, cannot be
discountenanced. Hence, the judgments as relied upon by Mr.Sethi have no
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applicability to the present case given the distinguishing factual aspects and
the general rule of assessment in passing off action. Each case has to be
considered in the context of its unique factual background.
69. Mr.Sethi has also relied upon judgment in the case of Britannia
Industries Limited v. ITC Limited, 2017:DHC:1452-DB to contend that
the triple test in a case of passing of must be established. We are of the
view that in this case, the respondent at least at a prima facie stage
established its case for passing off satisfying the triple test [Reference:
Reckitt & Colman Products Ltd. v. Borden Inc. (1990) 1 WLR 491 as
upheld in Syed Mohindeen (supra)] and has further made out a case for
grant of injunction. As such, we cannot agree with Mr.Sethi on the
applicability of judgment Britannia Industries Limited (supra) in the
favour of the appellant given the peculiar facts of this case.
70. The aforesaid suggests the attempt on the part of the appellant/
defendant is to copy the essential features of the get up and trade dress of
the plaintiff / respondent so as to capture the market and there is a
likelihood of harm/ damage to the respondent. More particularly given the
fact that the all the individual components of the trade dress though as per
Mr.Sethi are common to the trade, we find they are depicted in a manner
almost identical to that of the respondent’s trade dress. The said attempt has
not been denied but rather justified by stating that the presence of the house
mark is enough to dispel any confusion, which argument we do not find
ourselves in agreement with given our reasoning above.
71. Having said the above, Mr.Sethi has placed reliance on the decision
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of the Supreme Court in Pernord Ricard India Private Limited (supra)
more particularly on the paragraphs 31.7, 34.5, 36.2 to 36.4, which we
reproduce as under:-
“31.7. Colour combinations are treated similarly to single
colours combined with other distinctive elements. A specific
combination of colours may be prima facie registrable
depending on its manner of presentation. For example,
colours used within a defined geometric shape may qualify
for registration. Where colours are applied to packaging or
labels, the burden of proving acquired distinctiveness is
higher. In such cases, the proprietor must show that the
colour scheme functions as a badge of origin. Ultimately,
trademark law seeks to protect indicators of source – both
inherently and through acquired distinctiveness – which
were previously protectable only through the more
demanding process of a passing off action.
xxx xxx xxx
34.5. In the present case, the appellants have failed to
produce cogent evidence – such as consumer surveys, brand
recognition studies, or consistent third-party references – to
demonstrate that the term ‘PRIDE’ has acquired secondary
meaning exclusively pointing to their product. Mere
duration of use, turnover, or marketing expenditure is
insufficient to displace the term’s inherent descriptive or
laudatory character. As judicial precedent makes clear,
even extensive use of a descriptive term does not justify
exclusivity unless such use has displaced the word’s primary
meaning, so that it now serves as a source identifier in the
minds of the consuming public.
xxx xxx xxx
36.2. The grant of injunction – whether for infringement or
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proprietary rights. Where actual infringement is
established, that alone may justify injunctive relief; a
plaintiff is not expected to wait for further acts of defiance.
As judicially observed, “the life of a trademark depends
upon the promptitude with which it is vindicated.”
36.3. The principles laid down in American Cyanamid Co.
v. Ethicon Ltd. (1975) AC 396 continue to guide the Courts
while determining interim injunction applications in
trademark cases. The following criteria are generally
applied:
(i) Serious question to be tried/triable issue: The
plaintiff must show a genuine and substantial question
fit for trial. It is not necessary to establish a likelihood
of success at this stage, but the claim must be more
than frivolous, vexatious or speculative.
(ii) Likelihood of confusion/deception: Although a
detailed analysis of merits is not warranted at the
interlocutory stage, courts may assess the prima facie
strength of the case and the probability of consumer
confusion or deception. Where the likelihood of
confusion is weak or speculative, interim relief may be
declined at the threshold.
(iii) Balance of convenience: The court must weigh the
inconvenience or harm that may result to either party
from the grant or refusal of injunction. If the refusal
would likely result in irreparable harm to the plaintiff’s
goodwill or mislead consumers, the balance of
convenience may favor granting the injunction.
(iv) Irreparable harm: Where the use of the impugned
mark by the defendant may lead to dilution of the
plaintiff’s brand identity, loss of consumer goodwill, or
deception of the public – harms which are inherently
difficult to quantify – the remedy of damages may be
inadequate. In such cases, irreparable harm is
presumed.
(v) Public interest: In matters involving public health,
safety, or widely consumed goods, courts may consider
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prevent confusion or deception in the marketplace.
36.4. In conclusion, the grant of an interim injunction in
trademark matters requires the court to consider multiple
interrelated factors: prima facie case, likelihood of
confusion, relative merits of the parties’ claims, balance of
convenience, risk of irreparable harm, and the public
interest. These considerations operate cumulatively, and the
absence of any one of these may be sufficient to decline
interim relief.”
72. Suffice to state that the Supreme Court in the above decision in
paragraph No.36.4 has clearly held that grant of interim injunction in
trademark matters requires the court to consider multiple interrelated
factors: prima facie case, likelihood of confusion, relative merits of the
parties’ claims, balance of convenience, risk of irreparable harm, and the
public interest.
73. In the present case, in view of our finding above, we are prima facie
of the view that all the factors as laid down by the Supreme Court are
available to the respondent in the case in hand and the learned Single Judge
has rightly arrived at the finding, which we have already reproduced above
and granted the injunction in favour of the respondent/plaintiff.
74. In fact, the law is well settled by the Supreme Court in Wander
Limited (supra) that the appellate Court will not interfere with the exercise
of the discretion of the Court of first instance and substitute its own
decision except where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the Court had ignored the
settled principles of law regulating the grant or refusal of interlocutory
injunctions. In fact the Supreme Court held that the Appellate Court will
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not reassess the material and seek to reach a conclusion different from the
one reached by the court below solely on the ground that if it had
considered the matter at the trial stage if would have come to a contrary
conclusion. In the facts of the case, in hand, our conclusion is that the
learned Single Judge has exercised the discretion properly and it is not the
case where the settled principles of law have been ignored while granting
the interim injunction.
75. Additionally, we may also refer to the judgment of this Court in Sona
Mahindra Pvt Limited & Another v. Sona BLW Precision Forgings
Limited & Others, 2023:DHC:2572-DB wherein on the aspect of
preliminary injunction, the Court has held as under:-
“42. At the outset, we may highlight the position of law with
respect to the powers of an appellate Court dealing with an
appeal against a discretionary order. It is well settled that
the appellate Court will not reassess the material on which
the Court of first instance has decided to grant or refuse an
interim protection. The locus classicus in this regard, is the
judgment in Wander Limited (supra), wherein a three-judge
Bench of the Supreme Court has held as under:-
“14. The appeals before the Division Bench were
against the exercise of discretion by the Single Judge.
In such appeals, the appellate court will not interfere
with the exercise of discretion of the court of first
instance and substitute its own discretion except where
the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the
court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions.
An appeal against exercise of discretion is said to be
an appeal on principle. Appellate court will not
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different from the one reached by the court below if the
one reached by that court was reasonably possible on
the material. The appellate court would normally not
be justified in interfering with the exercise of discretion
under appeal solely on the ground that if it had
considered the matter at the trial stage it would have
come to a contrary conclusion. If the discretion has
been exercised by the trial court reasonably and in a
judicial manner the fact that the appellate court would
have taken a different view may not justify interference
with the trial court’s exercise of discretion. After
referring to these principles Gajendragadkar, J. in
Printers (Mysore) Private Ltd. v. Pothan Joseph
[(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721)
“… These principles are well established, but as has
been observed by Viscount Simon in Charles Osenton
& Co. v. Jhanaton [1942 AC 130] „…the law as to the
reversal by a court of appeal of an order made by a
judge below in the exercise of his discretion is well
established, and any difficulty that arises is due only to
the application of well settled principles in an
individual case….”
43. In fact, this view has been further propounded by the
Apex Court in a veritable plethora of cases including K.
Palaniswamy v. Shanmugam & Ors., Civil Appeal
1392/2023, Shyam Sel & Power Limited v. Shyam Steel
Industries, (2023) 1 SCC 634, Narendra Hirawat & Co. v.
Sholay Media Entertainment, (2022) 1 SCR 857 and
Ambala Sarabhai Enterprises v. K.S. Infraspace LLP,
(2020) 5 SCC 410 and by this Court in Shrivats Rathi and
Anr. v. Anil Rathi and Ors., 2021 SCC OnLine Del 2.
xxx xxx xxx
47. The learned Single Judge did hold that the respondents
have concealed/suppressed the aforesaid two aspects.
However, he also observed that concealment made by the
plaintiff in every case would not result in an automatic
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dismissal of the plaint and/or application seeking interim
relief. He held that the relief of injunction against
infringement and passing off is granted not only to protect
the proprietary rights of the plaintiff, but also to protect an
ordinary unwary consumer who may be deceived due to
adoption of a similar mark for similar goods by the
defendant. On the aspect of concealment of correspondence
exchanged between the respondents and the Trade Marks
Registry, he also held that the same cannot be a reason to
deny relief to the respondents or dismissing the suit.
xxx xxx xxx
52. The aforesaid would reveal that the learned Single
Judge did come to a conclusion that the concealment of
disclaimer on the exclusive rights in the word ‘SONA’ was a
vital fact to be disclosed by the respondents in the plaint,
though it may not eventually influence the outcome of the
suit/application seeking interim injunction.
53. We find that the learned Single Judge, by stating so, was
also of the view that the concealment made by the plaintiff
in every case would not result in automatic dismissal of the
plaint or the application filed by the plaintiff seeking interim
relief, as there is an element of public interest also to be
protected.
54. On a detailed perusal of the impugned order, we find
that the learned Single Judge while holding that there is
concealment of material facts by the respondents, has also
considered certain mitigating circumstances as mentioned
in paragraphs 45 to 50, which we have already reproduced
above. The learned Single Judge in exercise of his judicial
discretion concluded that for the acts of concealment, the
respondents can be visited with exemplary costs rather than
dismissing the suit/application.
55. That apart, we find that the learned Single Judge was of
the view that keeping in view the earlier adoption of the
word ‘SONA’ by the respondents, its extensive use by the
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respondents, and the likelihood of deception and confusion
being caused in the mind of an unwary customer of
continued association between the respondents and the
appellants due to the adoption of the mark ‘SONA’ in the
corporate name of the appellant No.1, the respondents were
successful in demonstrating a prima facie case for grant of
an interim injunction in their favour. The appellants have
failed to demonstrate that the exercise of discretion by the
learned Single Judge is perverse, capricious, arbitrary or
illegal.
xxx xxx xxx
57. We find ourselves in complete agreement with the
conclusion of the learned Single Judge on the above issue as
well.
xxx xxx xxx
61. In view of the discussion above, we are of the view that
there is basis for the learned Single Judge not to dislodge
the respondents on the ground that there has been a
concealment/suppression of facts by the respondents. We
are also of the view that the learned Single Judge has
exercised his discretion judiciously, in concluding that in
the facts of the case, equities lie in favour of the
respondents, and that the respondents have been able to
make out a good prima facie case for the grant of interim
protection, and in granting the ad-interim injunction in their
favour and against the appellants. There being no
perversity, arbitrariness or illegality in the exercise of
discretion by the learned Single Judge, the impugned order
warrants no interference. The other judgments on which
reliance was placed by the learned senior counsel for the
appellants are not required to be gone into as they were all
considered by the learned Single Judge, and also in view of
our above conclusion.”
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76. Mr.Sethi, has also relied upon certain judgments from foreign
jurisdictions viz. Alfwear, Inc. v. Mast-Jagegermiester US, Inc. 2023 WL
5765891; Arcona, Inc. v. Farmacy Beauty, LLC 976 F.3d 1074, Arcona,
Inc. v. Farmacy Beauty, LLC, United States Supreme Court; Kate Spade
LLC v. Saturdays Surf LLC, 950 F.Supp.2d 639; Koninkijke Philips
Electronics v. Hunt Control Systems, Inc. 2016 WL 3545529; Nabisco,
Inc v. Warner-Lambert Co, 220 F.3d 43(2d Cir.2000), Nartron Corp. v.
ST Microelectronics,305 F3d 397 (2002), RG Barry Corp. v. A Sandler
Co., 406 F.2d 114 (1969), Trovan Ltd. v. Pfizer Inc, 107 Fed Appx 788
(2004), Autozone, Inc and Speedbar, Inc. v. Tandy Corp, United States
Court of Appeals, Sixth Circuit, 2004 FED App. 0200P (6 th Cir); and
Therma-Scan, Inc. v. Theroscan Inc. United Court of Appeals, Ninth
Circuit 295 F.3d 623 in support of his submissions. However, we do not
feel it necessary to delve into the same, given our findings above, especially
at this interim stage.
77. Our aforesaid conclusion is based on the finding that the trade dress
encompassing the overall visual appearance of the product including the
lay-out, colour scheme of the products of the appellant vis-à-vis those of the
respondent, has been rightly injuncted because it is deceptively similar to
the trade dress of the products of the respondent /plaintiff and there is every
likelihood of misleading the consumers and constitutes passing off.
78. In view of our findings and analysis above, this appeal being devoid
of merits is dismissed. We uphold the impugned order passed by the
learned Single Judge. The pending application is also dismissed.
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79. Needless to state that our findings in the present order, are prima
facie and the same shall be subject to final decision in the suit post trial.
The learned Single Judge shall decide suit without being influenced by any
observation made by us in this judgment.
V. KAMESWAR RAO, J
MANMEET PRITAM SINGH ARORA, J
MAY 22, 2026
rt
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