Delhi High Court Bars “ELECTROCAD” ORS, Finds Trade Dress Imitation of FDC’s “ELECTRAL”

Delhi High Court Bars “ELECTROCAD” ORS, Finds Trade Dress Imitation of FDC’s “ELECTRAL”

Introduction

The Delhi High Court has granted an ex-parte ad-interim injunction restraining the manufacture and sale of oral rehydration salts (ORS) under the mark “ELECTROCAD,” finding prima facie imitation of the trade dress of FDC Limited’s well-known “ELECTRAL” brand.

Justice Jyoti Singh observed that products sold over-the-counter, especially those consumed by a wide range of consumers, are highly susceptible to confusion based on visual similarity.

Factual Background

FDC Limited, a pharmaceutical company established in 1940, introduced oral rehydration salts in India in 1972 under the trademark “ELECTRAL.” The company alleged that Neeraj Agarwal, proprietor of Cadiz Lifescience, adopted the mark “ELECTROCAD” along with packaging closely resembling the distinctive green-and-white trade dress of “ELECTRAL.” The plaintiff contended that the rival packaging replicated key visual elements such as colour scheme, font style, and layout, leading to deceptive similarity.

Procedural Background

FDC Limited issued a cease-and-desist notice to the defendant prior to initiating legal proceedings. Upon failure of compliance, the company approached the Delhi High Court seeking injunctive relief against the alleged infringement and passing off. The matter was considered at the stage of granting ex-parte ad-interim relief.

Issues

1. Whether the mark “ELECTROCAD” and its packaging are deceptively similar to “ELECTRAL.”

2. Whether imitation of trade dress in over-the-counter pharmaceutical products is likely to cause consumer confusion.

3. Whether the plaintiff established a prima facie case for grant of interim injunction.

Contentions of the Parties

The plaintiff contended that its “ELECTRAL” packaging had acquired distinctiveness and goodwill over decades and enjoyed trademark and copyright protection. It argued that the defendant deliberately imitated its trade dress to mislead consumers and ride on its reputation.

The defendant contended that the marks “ELECTRAL” and “ELECTROCAD” were distinct and denied likelihood of confusion.

Reasoning and Analysis

The Court observed that ORS products are sold over the counter and are often purchased by consumers relying on visual memory rather than careful reading of brand names.It held that in such cases, imitation of trade dress assumes greater significance and can lead to substantial consumer confusion, particularly among illiterate or semi-literate consumers.

The Court found that the similarity in packaging was neither accidental nor incidental and indicated a prima facie attempt by the defendant to replicate the plaintiff’s product presentation.

It also noted that the products were sold through similar trade channels and targeted the same consumer base, increasing the likelihood of confusion. Considering the established goodwill of the plaintiff’s brand and the risk of deception, the Court held that the balance of convenience lay in favour of granting interim protection.

Decision

The Delhi High Court granted an ex-parte ad-interim injunction restraining the defendant, its agents, and distributors from manufacturing or selling ORS products under the impugned “ELECTROCAD” trade dress or any packaging deceptively similar to “ELECTRAL.”

The restraint was extended to both trademark infringement and passing off, as well as infringement of copyright in the artistic work of the packaging.

In this case the plaintiff was represented by Advocates Prithvi Singh, Prithvi Gulati, and Krtin Bhasin.