He also submitted that the plaintiff does not have a word mark registration for the mark TOTAL and all registrations of the plaintiff pertain to device marks/ label marks and so, no case for infringement is made out. He further submitted that defendants had adopted the unique and distinctive trade dress/ packaging for marketing of TOPAZ brand in the year 2011 and it has no relevance to the copyright registrations obtained by the plaintiff for its product under the mark TOTAL, as the same are distinct and dis-similar. The Delhi High Court via its earlier order had barred defendants, its Directors, partners or proprietors, as the case may be, its officers, servants and agents from manufacturing, selling, offering for sale, supplying, advertising, directly or indirectly dealing in any business unauthorizedly using the plaintiff’s trade mark TOTAL (similarity of which to the mark TOPAZ is disputed). It further raised objection on the use of the essential features of his product's packaging/ trade dress again amounting to infringement of the his copyrights subsisting in the packaging/ trade dress of the plaintiff’s trade mark TOTAL. The plaintiff allged that the mark is deceptively similar to his mark of plaintiff and is created using permutations / combinations from his mark and thereof amounts to infringement of plaintiff’s trade mark TOTAL. The case is concerned around two cigarette brands, the plaintiff accussing defendent-appellant of using his trade mark TOTAL in their mark TOPAZ (also written in the same font and style as per the plaintiff).
Justice BN Srikrishna Report on Institutionalisation of Arbitration.
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