“Of all the available names, HUL intentionally chooses as part of its name which is also a prominent, essential and leading feature of its competitor’s mark,” the Calcutta High Court said as it passed an interim order restraining Hindustan Unilever from using ‘Glow and Handsome’ which contained an essential feature of Emami’s Fair and Handsome trademark.
Stating that HUL intentionally opted to choose the essential feature of Emami’s product, the court observed that even though the packaging is different unwary purchasers may only remember the one word ‘Handsome’ and are “likely to be deceived by the misleading indicia ‘Handsome’ and this has now been intentionally made a cause for confusion and deception,” the court order stated.
The court also added that it is a foreseeable consequence that Emami’s business and goodwill will be damaged due to the misrepresentation.
“In choosing the word ‘Glow and Handsome’ there is also an element of taking unfair advantage of a leading, prominent and essential feature of the petitioner’s mark which deceives or is likely to deceive. Nobody has any right to represent the goods of somebody else. In doing so, the rival takes a ‘free ride.’ There is no line between permissible free riding and impermissible free riding. All ‘free riding’ is unfair,” said the court.
The presiding judge, thus, said that Emami had a strong prima facie case and the ‘balance of convenience’ is strongly in its favour.
Upon hearing what both parties had to say, the court decided to give Emami interim relief in the matter.