INDIA BUSINESS WORLD - MAY - JUNE 2007
The Month that was ...

DABUR RESTRAINED FROM USING GLUCOSE D

The Supreme Court has granted Heinz's plea to restrain Dabur from using a Glucose D pack deceptively similar to Heinz's Glucon D. The court observed that the use of trademark Glucose D by Dabur could mislead the consumers of Glucon D, the proprietary right of which lies with Heinz Italia, as there is phonetic similarity between the two.

While a Dabur representative declined to give an official comment on the ground that they are yet to receive the court's order, he said that it is his understanding that the court's injunction applied only to a 2003 pack that the company has already discarded. Glucose D has a turnover of Rs 50 crore.

However, the court has observed that "the mere fact that the respondents (Dabur) have, time and again, made small changes in their packaging is an attempt to continue to mislead the purchaser..."

"We are of the opinion that the packaging of Glucose D and Glucon D is so similar that it can easily confuse a purchaser," said the apex court allowing an appeal of Heinz which had sought an ad interim injunction to restrain Dabur from using the trademark Glucose D or any other trademark and deceptively similar packaging.

While allowing the appeal, the apex court said that the trial court should decide the suit without being influenced by its observations. The dispute was over a 2003 pack of Dabur's Glucose D which was discontinued in 2004 following this fight. "It's like killing a dead snake. The pack over which the fight started does not exist now,'' said a source close to Dabur. However, Heinz thinks that Dabur has been making cosmetic changes to the packaging. The real issue is the Glucose D trademark, which Heinz feels dilutes the brand equity of its Glucon D.

Seeking an interim injunction against Dabur, Heinz moved a Gurgaon district court which dismissed the application following which the appellant company approached Punjab & Haryana High Court in October 05. Following its rejection, Heinz moved the apex court.

The Supreme Court said that the colour scheme of Glucose D and Glucon D is almost identical with a happy family superimposed on both. Dabur had said that in Glucose D the happy family consisted of four whereas in Glucon D the family was of three and as such the two were dissimilar. Rejecting the plea, the court said, "We are of the opinion that the colour scheme and the overall effect of the packaging has to be seen."

The court said that in case of a passing off action, the similarities rather than the dissimilarities have to be taken note of. The principle of phonetic similarities cannot be ignored and the test is as to whether a particular mark has obtained acceptability in the market so as to confuse a buyer and the nature of product he was purchasing has to be taken into account, said the court. The court turned down Dabur's plea on changes in its packaging material. "The respondents (Dabur and others) have time and again made small changes in their packaging which is an attempt to continue to mislead the purchaser and to make it more difficult for the appellants (Heinz and others) to protect their mark, which the record shows has acquired an enviable reputation in the market," said the court.

In July 2002, Dabur launched a similar product under the name Glucose D by using packaging which was deceptively similar to Glucon D. Again Heinz moved a trial court seeking grant of an ad interim injunction. It was dismissed by the trial court and was confirmed by the Punjab & Haryana High Court. Challenging that, Heinz had moved to the apex court which passed the order on the limited question of ad interim injunction appeal.