16 May 2017

Design – Each component of design need not be tested for originality and novelty

The plaintiff, a manufacturer of plastic insulated products claimed infringement of the registered design of its water bottle ‘PURO’ with a two-tone colour scheme, flip top and unique surface pattern and that the ‘Kudoz’ bottles sold by the defendant would mislead the public into thinking they were products of the plaintiff.

The defendant argued that all bottles – containers for liquids - are vertical and cylindrical and there was no uniqueness or novelty in the design of the plaintiff. Rather, the design was a mosaic of prior art of various integers that made up the design. The High Court however, did not agree with this contention.

High Court of Bombay in Cello Household Products v. Modware India has opined that to say no vertical cylindrical fluid container can have either originality or novelty is an oversimplification of the Designs Act and that ‘mark’ under the Trademarks Act includes shape of goods It held that when seen side by side, the products were incapable of being distinguished. The test to be applied was whether the essentials of that which makes the design visually appealing have been substantially, but not necessarily exactly, copied.

The defendant’s product adopted the same colour scheme and packaging and it was not possible to distinguish one from the other. Thus the Court by its Order dated 30-3-2017 granted interim injunction restraining the defendants from infringing and in any manner passing off the Plaintiffs’ registered designs in water bottles. 


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