Registered Design – Trademark Registration in Cochin

Registered design in respect of washing machine

Undisputedly, the plaintiff’s product is designed to give distinctive appearances. The perusal of the photographs would reveal that all the washing machines are having rectangular shape. It is the first product of the plaintiff which is having rectangular shape on one side and semi-circular shape on the other side. In my considered view, the distinguishing character that is provided by the plaintiff is in order to distinguish its product from the others and show it to be a unique one. It is to be noted that the plaintiff is manufacturing the product with these design from September 2010. The sale by the plaintiff for this particular product from September 2010 till the filing of the suit is in the tune of about Rs.308 crore. It can be anybody’s guess, as to why defendant has woken up almost after a period of two years from the introduction of the plaintiff’s product trademark and manufactured the machines with the so called dissimilarities. It is to be noted that it is nobody’s case the uniqueness of the plaintiff’s design is having something to do with functional utility of the product. I find that the present case is a case, wherein the plaintiff has established that due to uniqueness of its product by virtue of a distinctive and novel design given to it, the plaintiff has achieved substantial goodwill in the market.


It is the contention of Shri Tulzapurkar that the product is high price product and, as such, the consumers or buyers such a product would make enquiry in the market and only after their satisfaction would buy such a product trademark. In so far as above submission of Shri Tulzapurkar regarding class of the consumers and manner of purchase is concerned, the answer to the said argument would lie in the judgment of this court in Gorbatschow Wodka KG. versus john Distilleries limited (Supra). The learned single Judge, while considering the submission of the similar nature, has observed thus: The Submission of the defendant is that because the purchasers of the plaintiff’s product are educated and affluent, they have within them a discerning capacity which renders the possibility of a deception unlikely. The submission involves a basic fallacy. The fallacy lies in assuming that while those who are educated or affluent have the ability to discern, since they have higher disposable incomes, persons who do not belong to that category are more likely to be deceived. Gullibility as a trait of human character does not necessarily possess social or economic attributes. The ability of a consumer to discern is not necessarily relatable to social class or economic status and to make such an assumption would lead the court to an unwitting stereotype.  At least the court must not accept such stereotypes. An ordinary consumer with a lower disposable income may well be concerned, as much as a consumer of high end products is, about the quality of what she consumes. But the point which has been urged before the court is that an unwary consumer of low priced, fast moving consumer goods is more likely in the former and improbable in the case of the latter. Stretched to its logical conclusion, the submission of the defendant would lead to a result where the remedy in passing off becomes available only in respect of goods which the average consumer purchases for the daily necessities of life. For, it is the submission of the Defendant that it is in the case of such goods trademark that the consumer makes a decision to purchase without a careful and discerning mind. The remedy in passing off would be rendered illusory if such an argument were to be accepted. The law has not restricted the remedy only in relation to goods of a particular nature or quality but across the spectrum are subject to imitation and privacy. The protection of the remedy in passing off is as much available to a manufacturer who invests capital, time and ingenuity in producing premium goods or services or those styled as fast moving consumer goods. The Court will not readily assume that because consumers of premium goods and services have higher disposable incomes or, as the defendant states are educated, that the likelihood of deception is minimal. If the law were to accept such a position, it would only open a pathway for deceit. Less than honest competitors in business would carefully grind away at the features of an existing trademark with an established reputation so that eventually nothing will be left of the uniqueness of the mark. The protection of intellectual property will be a writ in sand if such a submission is accepted. The class of purchasers is undoubtedly a relevant consideration, but the court must have due regard to all the relevant circumstances including that.


Perhaps the point may well ne stated in the following expression of principle in the judgment in Slazenger and Sons versus Feltham & Co. Nov.6, 1889 R.P. Design 531 which emphasis “the honesty of the case”:

“There is sufficient nearness, sufficient neighborhood, in the one word to the other, to justify me in coming to the conclusion that it is calculated to deceive. I shall, no doubt, be assumed to conclude and I make no secret that I do conclude that that finding is at least consistent with the honesty of the case”.

As Lord Justice Lindley held in that case:  “Well, what is that for? One must exercise one’s common sense, and, if you are driven to the conclusion that what is intended to be done is to deceive if possible, I do not think it is stretching the imagination very much to credit the man with occasional success. Why should we be astute to say that he cannot succeed in doing that which he is staining every nerve to do?”. The agreement advanced on behalf of the defendant is completely answered by the learned single judge with whom I am in respectful agreement. Particularly, in the present case it is also to be noted that the plaintiff’s product of a 6.8 kg. machine is priced at Rs. 10,800/- whereas in the similar segment the defendant’s product, according to the defendant, is sold at Rs. 8,300/- and, according to the plaintiff, it is sold at Rs. 7,200/-. In this respect it is the submission of the defendant that M.R.P. of its product designs is sold at Rs. 8,300/- whereas the plaintiff has annexed invoice showing that the defendant’s product, which is an imitation of the plaintiff’s product, is being sold of at much lesser price than that of the plaintiff. In that view of matter, I find that the present case would fall under the exceptions which are carved out by the learned single Judge in case of Kemp and Company versus Prima Plastics Ltd.,(supra) and would also be covered by the learned single judge of the court in the case of Gorbatschow wodka KG. Versus John Distrilleries Limited (supra) and of Calcutta High Court in the case of Castrol India Ltd versus Tide Water Oil  (I) Ltd. (supra). I am of the considered view that applying the test “Judged solely by eye”, the defendant’s product is an imitation of the plaintiff’s product is an imitation of the plaintiff’s design. That leads me to the next question as to whether the plaintiff is entitled to ad-interim relief or not. Since the plaintiff has made out a case for infringement of its statutory trademark rights and also passing of, I find that a prima facie case is made out for grant of injunction. The test of balance of convenience and irreparable injury also tilts in favor of the plaintiff. The plaintiff has its registered designs which are novel and unique and on the basis of the same has acquired goodwill from September 2010 having sold the goods to the tune of about Rs. 308 crore till filing of the suit. The defendant has come with its product in June 2012 with striking similarities. If trademark injunction as sought is not granted, an irreparable injury would be caused to the plaintiff would be deprived from having excuse use of its novel and unique design which have been registered in 2009 and which the plaintiff has started manufacturing from September 2010 and as per the statutory provisions which designs the plaintiff is exclusively entitled till 2019. As against this, it is evident from various photographs that different manufacturers including defendant have manufactured different types of washing machines having rectangular shape. Even though if relief as sought is granted in favor of the plaintiff, the defendant can very well go on manufacturing and marketing its product accept the impugned product and as such no irreparable injury would be caused to the defendant. In this view of the matter, there shall be ad-interim relief in terms of prayer clauses (b) and (c).

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