Bombay High Court restrains Cocoplus from imitating Parachute’s trade dress

The Bombay High Court on Wednesday restrained Zee Hygiene Products from using packaging, trade dress and labels that were found to be prima facie deceptively similar to those used by Marico Limited’s Parachute brand. [Marico Limited v. Zee Hygine Products Pvt Ltd ].The Court’s interim order bars the Zee’s Cocoplus range of hair oils from mimicking the distinctive visual identity associated with Parachute, especially the bottle shape, colour scheme and design elements.Justice Sharmila Deshmukh observed that there was 'prima facie' infringement. Observing that the defendants had adopted a trade dress that was “structurally and visually similar” to that of the plaintiff’s products, the Court stated:“The Defendant’s product when compared, it is prima facie evident that essential features of Plaintiff’s trade mark which is flag device with the coconut tree and two broken coconuts with coconut water oozing out of it and the distinct colour combination of blue, green and white has been slavishly copied by the Defendant in such a manner so as to come as close as possible to the Plaintiff’s mark." .Marico filed the suit alleging infringement of its registered trademarks and copyrighted artistic works. The dispute was triggered by the defendant’s sale of Cocoplus oils, which allegedly copied Marico’s branding, bottle shape and packaging.Zee Hygiene contended that Cocoplus was an independently registered mark with a claimed use since 2005. They argued that their branding was distinct and any resemblance was coincidental or derived from generic elements common in the trade. In reply, Marico’s counsel submitted that Zee had failed to use its registered mark and instead intentionally adopted visual elements identical to those used by Marico. He argued that the defendants’ mark was fraudulent and could not avail protection under the Trade Marks Act.The Court observed prima facie that what was actually used by the defendant as a trademark was not its registered device mark. The defendant had deviated from its registered mark and, instead, used as part of its mark the device of two broken coconuts with oil oozing out, which was found to be deceptively similar to the plaintiff's trademark. .It also rejected the argument that the elements copied - such as the broken coconut, colour scheme and bottle shape - were generic. Relying on precedents, the Court emphasised that infringement is assessed through the overall visual impression on the average consumer."The words “likely to deceive” is definitely a question of first impression and it is not necessary to prove any intention on the part of the Defendant. The test is substantially based on an appeal to the eye. When so judged, the Plaintiff’s device marks / word marks / labels / packaging / trade dress is structurally and visually similar to that of the Defendant."Finding the defendants’ use of the mark and trade dress dishonest and likely to cause confusion and dilution of Marico’s brand, the Court granted interim relief.A four-week stay on the operation of the order was granted to enable the defendants to appeal..Advocates Hiren Kamod, Nishad Nadkarni, Aasif Navodia, Khusbhoo Jhunjhunwala, Jaanvi Chopra and Rakshita Singh appeared for Marico.Advocate Harsh Desai represented Zee Hygiene..[Read Order]