Trade Dress Infringement: The test for comparison based on deceptive similarity
Introduction
The Delhi High Court, in the case of Beiersdorf AG v. RHS Global Private Limited, restrained the Defendants from infringing upon the Plaintiff’s copyright in the artistic work of their “NIVEA” label and trade dress until the pendency of the suit.
The Plaintiff claimed that they have garnered a reputation over a long period of time with respect to their trademark and trade dress and that they have distinguishing features in their trade dress, including the brand name being written in white font and drank blue background, a distinctive blue colour container and a milk splash device and cocoa butter in the form of a droplet design in golden colour in the middle of the milk swirl/splash device. The Plaintiff then alleged that the Defendant’s “Joy Intense Moisture” moisturizing lotion container and packaging was deceptively similar to the Plaintiff’s Nivea body lotion.
The Decision
With regards to trade dress infringement, the Court clarified that the “test for comparison, it is settled, is not for identifying dissimilarities between the plaintiff’s products and the allegedly infringing product of the defendant, but of whether, seen as a whole, the product of the defendant is deceptively similar to that of the plaintiff.”
The Court further stated that, “Holistically seen, therefore, there is, prima facie, every likelihood of an unwary purchaser, of average intelligence and imperfect recollection, confusing the product of the defendants with that of the plaintiff.”
The Court also found deliberate infringement on part of the Defendant.
As a result, the Court granted an ex-parte interim injunction in favour of the Plaintiff.
Conclusion
Although the final decision is pending, it seems that the Court’s clarification on the test for comparison of products and their trade dress is a step in the right direction. With growing competition, trade dress provides a new forum to secure distinctiveness and it has also become an essential brand identifier. Deceptive similarity and the likelihood of confusion amongst consumers should be and rightly so, are the correct indicators for trade dress infringement.
