Dabur is set to appeal against the Delhi High Court’s order restraining the company from selling its cooling oil product ‘Cool King Thanda Tael’. This follows Emami‘s complaint that the said product is similar to its own ‘Navratna Ayurvedic Oil’.
The Bar & Bench report stated that a judgment delivered on January 31 by Justice Tejas Karia held that Dabur’s packaging amounted to “passing off and constituted a deliberate imitation of the distinctive trade dress associated with Emami’s Navratna oil,” which has been in continuous use since 1989, the report said.
In a statement to Financialexpress.com, “We are going to appeal against the order,” a Dabur spokesperson said.
Court finds deliberate imitation
According to the Bar & Bench report, Emami had approached the court seeking an interim injunction against Dabur, alleging that the trade dress of Cool King Thanda Tael copied the essential visual elements of Navratna Ayurvedic Oil.
These included the red colour scheme, a transparent bottle of similar shape, a flip-top cap, and the depiction of hibiscus flowers, ice cubes and ayurvedic herbs, along with an overall layout using red, white, yellow and gold colours, the Bar and Bench report added.
An ex parte injunction had initially been granted in August 2023. However, a division bench later set aside the order on the ground that Dabur had not been given an opportunity to file its reply. The matter was subsequently reheard on the merits, confined to the issue of passing off, the report said.
Emami cites market leadership, secondary meaning
According to the Bar and Bench report, Emami argued that Navratna is the market leader in the cooling oil segment with a market share of around 66% and that its trade dress had acquired strong secondary meaning through more than three decades of uninterrupted use, extensive advertising and substantial sales.
The company contended that Dabur’s adoption of a near-identical trade dress was dishonest and intended to ride on the goodwill associated with Navratna. It argued that the similarities were so striking that confusion among consumers of average intelligence and imperfect recollection was inevitable.
Dabur’s defence rejected
Dabur opposed the injunction, arguing that the colour red, cooling imagery such as ice and herbs, and descriptive terms like ‘thanda’ and ‘cool’ were common to the trade and functional in nature. The company also submitted that the prominent display of the ‘DABUR’ house mark was sufficient to distinguish its product, the Bar and Bench report said.
It further claimed prior use of red-coloured oil packaging through products such as Dabur Lal Tail and Dabur HimSagar, and contended that Emami had failed to establish goodwill in the claimed trade dress, as per Bar & Bench.
According to Bar and Bench, the court rejected these arguments, holding that Dabur’s trade dress was deceptively similar to Emami’s.
Distinctive combination merits protection
“The essential features of the plaintiff’s trade dress such as colour of the packaging, colour of the cap, colour of the liquid, shape of the bottle and the use of combination of red, white, yellow and gold with the essential features of ice cubes, hibiscus flowers, ayurvedic herbs are copied in the impugned trade dress,” the court said, as per Bar and Bench.
While observing that Emami could not claim a monopoly over individual elements such as the colour red or the use of herbs, the court held that the distinctive combination, arrangement and presentation of these elements had acquired secondary meaning in favour of Navratna oil and merited protection, the report added.