CASE :Dispute between ANCHOR HEALTH & BEAUTY CARE Pvt. Ltd.

and COLGATE PALMOLIVE COMPANY

THE PLAINTIFF
COLGATE PALMOLIVE COMPANY

COLGATE PALMOLIVE COMPANY

Colgate-Palmolive Company, together with its subsidiaries,

manufactures and markets consumer products worldwide.

It offers oral care products including toothpaste,

toothbrushes, and mouth rinses, as well as dental floss and pharmaceutical products for dentists and other oral health professionals.
The company offers its oral, personal, and home care

products under the Colgate Total, Colgate Max Fresh, Colgate 360, Colgate, Colgate Plax, Palmolive, Softsoap, Irish Spring, Protex, Speed Stick,.

 It also provides pet nutrition products for dogs and cats. The

company markets its pet foods through pet supply retailers and veterinarians for everyday nutritional needs under Science Diet name.
The company was founded in 1806 and is headquartered in

New York, New York .

THE DEFENDANT
ANCHOR HEALTH & BEAUTY CARE Pvt. Ltd.

 Anchor Health & Beauty Care Pvt. Ltd. was started in 1983. Sanjay Shah is

the M.D. of this company.

AHBC is a part Anchor group, was set up in the 1997 with the launch of

Anchor White Tooth Paste.

Has a range of products in Oral care & Personal care like Anchor White

paste, Dyna Soap, Anchor Toothbrush etc.

The brand ambassadors are Kajol & Katrina Kaif. The total turnover of the

company is 100 crores. It deals with oral and dental products. Registered office is at Mumbai.

Company Products:
Anchor white toothpaste Anchor gel toothpaste Anchor toothpowder Anchor toothbrush Toilet soap

The Infringement
Delhi H.C. had dealt with TRADEdress imitation concept in a

detailed manner in the case ofColgate Palmolive Company and Anr. v. Anchor Health and Beauty Care Pvt. Ltd.
The plaintiffs have filed the case for the passing off of

trademark and the dispute was on the and colour scheme combination of colours in a significant manner.
Colgate Company was the plaintiff and questioning the use

of a mark on dental product which is the combination of red and white in proportion of 1/3:2/3 respectively and the way of writing the name of product was also in dispute.

 Plaintiffs were using the mark of particular fashion from

1951 and the defendents started using it in 1996. Plaintiffs have filed the application to stop the defendents from using the particular mark.
The plaintiffs showed to the court that the look of trade

dress of the two articles, one manufactured by the plaintiff and another by the defendant from the point of view of not only unwary, illiterate customer/servants of the household but semi-literate also as the trademarks "Colgate" and "Anchor" are written in English language cannot be distinguished by ordinary customer.
The two separate brands of the toothpaste can be easily

confused on account of the similarity of substantial portion of the container having particular colour combination and also shape of the container.

The Validity Of The Complaint

Court said in this matter that may be, no party can have

monopoly over a particular colour but if there is substantial reproduction of the colour combination in the similar order either on the container or packing which over a period has been imprinted upon the minds of customers it certainly is liable to cause not only confusion but also dilution of distinctiveness of colour combination.
Colour combination, get up, lay out and size of container is

sort of trade dress which involves overall image of the product's features.

 There is a wide protection against imitation or deceptive

similarities of trade dress as trade dress is the soul for identification of the goods as to its source and origin and as such is liable to cause confusion in the minds of unwary customers particularly those who have been using the product over a long period.
If a product having distinctive colour combination, style,

shape and texture has been in the market for decades it got attached with the reputation and goodwill of the company which could be earned at huge cost.
And another company, by copying such particulars can

monopolize on this hard-earned goodwill.

The Judgement
The plaintiffs have succeeded prima facie in showing from

the look of trade dress of the two articles, one manufactured by the plaintiff and another by the defendant from the point of view of not only unwary, illiterate customer/servants of the household but semi-literate also as the trademarks "Colgate" and "Anchor" are written in English language cannot be distinguished by ordinary customer of a country where bare literacy level is abysmally low. The criteria is the overall impression from the look of packaging/container containing the goods and articles that can legitimately injunct its rival. Words "Colgate" and "Anchor" are distinct and have not an iota of similarities either in look or in sound. That is why the ingredients of trade dress, get up, colour combination, lay out of the container or packing acquire significance and relevance for determining the offence of passing off.

 This criteria flows from the concept of action of passing off

developed over the years that it is the similarities and not the dissimilarities which go to determine whether the action for passing off is required or not.
That is why in trademark cases even the deceptive

similarities are considered sufficient for infringement of trademark.

If similarities of trade dress are substantial from the look of

the two goods, it comes within the mischief of passing off. Distinctive differences in name is of no significance.
Reason is simple. If an illiterate servant or village folk goes

to the shop with the instruction to bring Colgate Tooth Power having a container of particular shop with trade dress of colour combination of Red and White in 1/3 and 2/3 proportion he will not be in position to distinguish if he is

 The defendants have to establish and bank upon on their

own trade dress or distinctive features so as to establish their own merit and reputation and attract the attention of the purchasing public and if there are no substantial dissimilarities of marks, colour combination, get up or lay out on the container or packing or covering of the goods of the prior comer these are likely to create confusion in the minds of customers between his goods and the goods of the prior comer in the market as underlying and hidden intention of the second comer is to encash upon the successful rival.

The plaintiffs have successfully established a prima facie

case for injuncting the defendant from using the colour combination of red and white in that order as trade dress on the container and packaging. As a consequence the application is allowed and defendants are, by way of ad interim injunction, restrained from using the colour combination of red and white in that order on the container/packaging of its goods viz. the "Tooth Paste".

 Hence , COLGATE PALMOLIVE COMPANY won the case under

the Section 48(1) of the Trade Mark Act, 1995 . Section 48 provides as under:" Registered users (1) Subject to the provisions of section 49, a person other

than the registered proprietor of a trade mark may be registered as a registered user thereof in respect of any or all of the goods or services in respect of which the trademark is registered. (2)The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor, for the purposes of section 47 or for any other purpose for which such use is material under this Act or any other law."

Presented by:
DHIRAJ KUMAR HARSHIT SRIVASTAVA