Justice Ravi Krishan Kapur noted in the order,"The HUL has an existing brand and in changing its name has intentionally opted to choose a leading, prominent and essential feature of its competitor’s product.
However, an unwary purchaser of average intelligence and imperfect recollection who only remembers the one word 'Handsome' is likely to be deceived by the misleading indicia 'Handsome' and this has now been intentionally made a cause for confusion and deception."
"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.
There is no line between permissible free riding and impermissible free riding.
All 'free riding' is unfair," Justice Kapur held.
Justice Ravi Krishan Kapur noted in the order,
"The HUL has an existing brand and in changing its name has intentionally opted to choose a leading, prominent and essential feature of its competitor’s product. It is true that the packaging of both the products are different. However, an unwary purchaser of average intelligence and imperfect recollection who only remembers the one word 'Handsome' is likely to be deceived by the misleading indicia 'Handsome' and this has now been intentionally made a cause for confusion and deception."
It is also a reasonably foreseeable consequence that Emami's business and goodwill would be damaged as a result of the misrepresentation, the Court said.
"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," Justice Kapur held.
The judge, therefore, held that Emami made out a strong prima facie case for passing off and that the 'balance of convenience' lies overwhelmingly in its favour.
