SANJIB BANERJEE, J. - (1.) THE test is in the eye and, usually, it is over in a matter of moments. THE charade that follows is to ensure adherence to form and propriety. When the test is in the eye, the evaluation is one by impression. THE many words that may then be expended in support of the assessment are often the excuse for the impression; imperfect as language is to capture how the eye instructs the mind. An impression once formed is difficult to dislodge unless the legal basis for forming such impression is shown to be erroneous. Interlocutory injunctions in claims of passing-off are generally made or declined within a minute or so of the two products being presented, particularly when the claim is founded on a similarity in the get-up or trade dress.
(2.) BOTH the plaintiff and the second defendant are big in the cigarette industry; in fact, they are huge. The claim is not one that a fly-by-night operator has come to ride piggy-back on the goodwill and reputation of an established commercial giant in the field. The plaintiff maybe the bigger of the two and may have the wider range of products, even cigarettes, but the second defendant is no johnny-come-lately. Between these two parties they have seduced, charmed and thrown many a life up in smoke. The immediate theatre of conflict arises upon the plaintiff's perception that the second defendant has altered the get-up and packaging of its 'Special' brand of cigarettes to mimic the metallic red and flaming gold packet of the plaintiff's 'Gold Flake' brand of the same class of poison. The plaintiff suggests that in the second defendant's recent adoption of the pattern of colour combination and writing in respect of the packaging of its 'Special' brand, there is apparent dishonesty in trying to creep up to the appearance of the plaintiff's hallowed brand and appropriate the goodwill that is exclusively the plaintiff's. The plaintiff concedes that the names of the products are not identical, that the pricing of the two products are in different bands and that there are other features suggesting dissimilarity; but insists that a would-be customer of the plaintiff's 'Gold Flake' brand has every likelihood of being confused at the sight of the second defendant's 'Special' packet and be deceived into settling for that on the mistaken impression that it was the plaintiff's product. Both packets are predominantly red and gold of nearly identical shades. That the plaintiff's packet is slightly longer than the second defendant's is apparent only when they are placed next to each other. Both are hinge packets with the entirety of roughly the top third of the packets being red all around. The middle third of either packet is largely golden in the front. The bottom third of the front of both packets is taken up by the statutory warning that both parties depict in such manner that the intent of the warning is substantially diluted. The front of both packets appears to be somewhat similar because of the similar colour combination and the prominent statutory warning. If the statutory warnings on both packets are ignored, then notwithstanding the similar colour combination of the two packets the dissimilarities stand out. If the packets are turned around and viewed from the back then it is impossible to mistake the one for the other. The plaintiff's packet has a straightline division of the top red and the balance gold with the name of its brand in a horizontal strip running across the middle of a spherical red patch which has other writings within it. The second defendant's packet has a larger proportion of red at the back than the plaintiff's and the edge of the red and gold on the front and the reverse of its packet have more of a wavy flourish than the non-descript straight-line demarcation of the colours in the plaintiff's packet. The plaintiff's red bands on the front and the back carry the writing 'Filter Tipped' with an eight-pronged star-like depiction between the two words, which the plaintiff says is an instruction that the empty packet should not be strewn around. The reverse of the second defendant's packet carries a mnemonic towards the bottom. The thin sides of the two packets appear similar primarily because of the colour combination, but the brand names appear prominently. The bottom of both the packets can hardly be distinguished from each other particularly from a distance. The top of the two packets are altogether different since the plaintiff's is coloured red with its distinctive logo carrying its name; and the second defendant's is golden with its brand name prominently featured.
(3.) THE plaintiff says that the test is not from the perspective of the habitual smoker alone who may be addicted to a particular brand. THE plaintiff contends that it is the first-time smoker or a casual smoker who has to be kept in mind while assessing the claim of passing-off since it may be assumed that the hardcore addict would seek a particular brand or, by long habit, be more discerning. THE plaintiff exhorts that the test must not be through the eyes of an educated urban consumer but from the point of view of an unsuspecting rustic who may intend to reach out for the plaintiff's product but end up getting the second defendant's and be none the wiser. THE plaintiff conjures up images of a dimly-lit countryside stall with little aid to tell the one packet from the other and suggests that if there is likelihood of confusion then, the plaintiff ought to obtain the injunction that it seeks. The plaintiff relies on a judgment reported at 2009 (39) PTC 208 (Ardath Tobacco Company Ltd v. Munna Bhai). At the trial of the passing'off action, the Court was satisfied in that case that the cigarettes marketed by the defendants had 'copied the trade dress of the same goods of the plaintiff.' The Court was also impressed that despite the plaintiff's mark not being used on the defendant's packet, the other features adopted were identical. The Court then proceeded to observe that since single cigarette sticks were sold more in this country than full packets, an action for infringement of trade mark in relation to cigarette packets had to be viewed in such light. The Court reasoned that since a casual purchaser may be misled into thinking a certain packet was something that it actually was not, there would be a possibility of confusion or deceit.;