Indian court recognizes trademark rights in colour combinations

In Colgate Palmolive Company v Anchor Health and Beauty Care Pvt Ltd (Case 3502/2003), the Delhi High Court has granted the plaintiff an interim injunction in a passing off action relating to trade dress. The decision charts new territory for Indian trademark law in recognizing, for the first time, trademark rights in a pure colour combination.

The cause of action for the suit arose when Colgate Palmolive Company launched a toothpowder at the end of 2002. The product's packaging comprised the famous red and white colour combination with added splashes of yellow. Anchor Health and Beauty Care Pvt Ltd almost immediately came out with its own toothpowder in a deceptively similar packaging. In a short time, Anchor acquired a significant share of the toothpowder market. Colgate sued Anchor for passing off.

The Delhi High Court granted an interim injunction to Colgate based on the following reasoning:

• While the word marks COLGATE and ANCHOR are very dissimilar in look and sound, the "trade dress, get-up, colour combination [and] lay out of the container or packing" were significant in determining the offence of passing off.
  
  
• It is the similarities and not the dissimilarities that need to be reviewed to determine the merit of a passing off action.
  
  
• Colgate's trade dress had been used since 1951 and thus had acquired secondary meaning.

The test applied was that of confusion as to the source and origin in the mind of an "illiterate, unwary and gullible customer" who identifies a product by its trade dress alone and in whose mind the disparity of the two trademarks has no relevance. The judge observed:

"If an illiterate servant or [...] [villager] goes to the shop with the instruction to bring [back] Colgate toothpowder [in] a container [bearing a] colour combination of red and white in one-third and two-thirds proportion, he will not be in [a] position to distinguish if he is handed over Anchor toothpowder [...] in a container having the identical trade dress and colour combination of red and white in that order and proportion. Confusion is writ large as to source and origin as the difference in name will not make any difference to such a customer and [Anchor's] goods can easily be passed off as [Colgate's] goods."

Although there have been earlier decisions of Indian courts granting judicial recognition to trade dress, the similarities in the rival products have not been limited to colour combinations alone but have included, among other things, graphical works and descriptions on the label - all of which were absent in the present instance.

Pravin Anand and Shwetasree Majumder, Anand & Anand, New Delhi