CELLO HOUSEHOLD PRODUCTS Vs. MODWARE INDIA
HIGH COURT OF BOMBAY (AT: STATE)
Cello Household Products, A Registered Partnership Firm, Having Its Office At Cello House, Corporate Avenue, B Wing, Sonawala Lane, Goregaon (East), Mumbai 400 063 India
Modware India Having Its Office At 109, 2Nd Floor, Swadeshi Market, 316, K D Road, Mumbai 400 002 And Factory At No. 15 And 16, S.K
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G.S. Patel, J -
(1.) The action is in design infringement and passing off. There is also a prayer in the suit for relief in passing off in relation to packaging. The design in question is of a plastic water bottle. The Plaintiffs (collectively, Cello) claim to have designed a unique water bottle -in the words of the Designs Act 2000, one that has both novelty and originality. This claim is based on the bottle's shape, configuration and surface ornamentation. Cello says the Defendants (collectively, Modware) illicitly brought into the market a product that is indistinguishable in every single respect, down even to the colours of the water bottles. Though Cello makes no claim in the colour or colour combinations, Mr Tulzapurkar for the Plaintiffs makes a reference to the two-tone colour scheme of the water bottles only to show the extent of copying. He also points out that even the packaging adopted by Modware is so remarkably similar to Cello's that it cannot be a mere coincidence.
(2.) The facts lie in a narrow compass. Both Plaintiffs are partnership firms. They are part of the Cello Group of companies. They make various types of plastic insulated products such as bottles, bowls and so on. The 2nd Plaintiff owns the house mark CELLO. It controls this for other group companies. The 1st Plaintiff manufactures and markets these products bearing the house mark.
(3.) Paragraphs 4 and 5 of the plaint speak to the Plaintiffs' reputation and corporate track record. There is no dispute about this. Cello claims a high sales turnover and promotional expenses. I will accept this too as correct. There is no denial and no part of the defence is based on this.;
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