• Dr. Mohan Dewan

 After a long time, I became privy to a well-reasoned decision in a trademark suit issued by the Commercial Division of the Bombay High Court while deciding an interim injunction issue.

The case was identified as “Pidilite Industries Limited vs. Chiripal Industries Limited” and dealt with the use of the respective marks “FEVICOL HEATX” and “TIKAWOO HEAT-TIK”. 


The Fevicol brand includes a logo of two Elephants pulling on hollow hemispheres. In the original experiment performed in 1654 at Magdeburg, the spheres were not bonded with any adhesive. Their edges were sealed with grease and air was pumped out.  Two teams of horses were attached to either side of hemispheres to pull and they could not pull the hemispheres apart. Just thereby demonstrating the power of atmospheric pressure on vacuum. In the variation created by Pidilite, the team of horses are replaced by Elephants on either side, but the inspiration is clear. The thought for trade by the image is that with the application of “Fevicol” the bond is so strong that even two Elephants cannot pull the hemispheres apart. The logo also includes the feature of an “orange sun” behind the Elephants.  Pidilite contended before the Court that the picture of an animal, in Chiripal’s “TIKAWOO” case, Chiripal had replaced the two Elephants with a Rhinoceros and having a sun behind the Rhino. They argued that this feature was deceptively similar and the adoption of this mark was dishonest. A lot of emphasis was also placed on the fact that the two cans were provided for heat resistant adhesives and bore the tradenames “ ” and “ ”.  In his well-reasoned comments Justice Pitale observed that while comparing the rival marks the Court must appreciate the overall impression, rather than going into each feature to ascertain similarity or difference, and for this purpose apply the test of the person of an average intelligence and imperfect recollection.  The learned Judge went on to observe that with reference to the construction industry, persons buying the products would go by the impression gathered by the images depicted on the container and words used in respect of the products.

On examining the two cans above, the Court was of the opinion that the image of the “Rhino with the sunset” was not deceptively similar to the image of the “Elephants with the sun in the background”. However, when it came to the two tradenames “ ” and “ ” the learned Judge was of the opinion that the use of the names ” and “ ” were likely to cause confusion. Therefore, an injunction was passed on Chiripal in respect of the use of the tradename “ ”. In my opinion, what seems to also have increased the cause for confusion was that both tradenames were written in similar shades of red. The observation of the learned Judge makes interesting reading. The Judge opined that if two words are spoken in a hurried manner, there is a possibility of confusion, particularly when persons from different backgrounds, coming from various parts of the country, with diversity in language do tend to pronounce English words hurriedly in such a manner that confusion can indeed arise.

In the same judgement, the Honorable Justice Pitale was called upon to give his opinion on the deceptive similarity of two other cans by the respective companies. 


Pidilite tried to make out a case where the use of man wearing a construction helmet along with the words “MR.ENGINEER” was deceptively similar to the Pidilite’s registered mark “DR.FIXIT” also having the device of a man wearing a construction helmet. The Court was not convinced that the two images were deceptively similar or there was slavish copying on the part of the defendant. However, the Honorable Court noted that there were tradenames “LWP+” respectively on the two cans/bottles. Although the two images on the cans/bottles were considered not prima facie deceptively similar, the Honorable Court ordered interim injunction for use of the tradename “LWP+” after considering that this was deceptively similar to “LW+”. In my opinion, on first sight it appears that the plaintiff did not secure what it wanted, in reality it did because the defendant will now have to redesign its label and overall image to remove “ ” in one case and “LWP+” in the other. 


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