Based on a complaint filed by Vicco Laboratories, the MRTPC acting chairman RK Anand and member M Mahajan issued a notice of enquiry, against Ekcco Herbs (India) making it returnable on May 22, 2001. The bench said "the impunged trade practice appears to be prejudicial to the interest of the consumers, as they would be misled into buying the product of Ekcco, without the intention of doing so and under the mistaken impression that it is the product of the complainant, they need to be protected."

Stating that the balance of convenience was in favour of Vicco, the bench said "Ekcco is accordingly restrained from using the same size, shape, colour, and printing on the container as that of Vicco."

Ekcco was, however, granted four weeks time from the date of the order to comply with the MRTPC directives. Vicco Laboratories, in its complaint, had charged Ekcco of adopting unfair trade practices by using identical shape, colour and size of container of the tooth powder `Primo Vajardanti' to mislead and confuse the consumer into buying its product.

Vicco, in its complaint before the Commission, said Ekcco launched its product `primo Vajardanti' and to promote its sale, used identical packaging as that of Vicco Vajardanti.

It further said that Vicco was one of the registered products with Registrar of Trademarks and had also gained consumer acceptance.

The bench observed that the Ekcco's product had entered the market recently and had applied for registration of its trademark which was granted.

It further noted that such kind of similarity had an element of misleading and deceiving the consumer into buying the product of the respondent on the belief that it was that of Vicco.

"Applying the test laid down by the Hon'ble Supreme Court in the aforesaid case, the trade practice adopted by Ekcco in marketing its product, `Primo Vajardanti' can be said to be unfair trade practice of the Act," the bench said. It was not unlikely that illiterate and unlettered consumers, more particularly, in rural areas, were misled and deceived, the bench added. Ekcco however, said similarity in packaging of its toothpowder was an act of passing off the goods in similar trade dress, within the meaning of Trade and Merchandise Marks Act, 1958 and therefore the petition was not maintainable.