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The court emphasised that “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 a recent development, the Calcutta High Court issued an interim order prohibiting Hindustan Unilever Limited (HUL) from utilising the mark 'Glow and Handsome,' citing its resemblance to an essential aspect of Emami's 'Fair and Handsome' trademark.
Justice Ravi Krishan Kapur, presiding over the case, remarked that “Any confusion or deception is damaging. It results in diluting the mark. To some, this may be fair competition or aggressive marketing. To others, trading must not only be honest but must not even unintentionally be unfair,” ruling that HUL deliberately opted for a name change incorporating a significant element of its competitor's product.
The court underscored that by opting for the term "Glow and Handsome," there's an evident exploitation of a key element of the petitioner's trademark, leading to potential deception. This behaviour essentially constitutes "free riding," a practice that is inherently unfair. “There is no line between permissible free riding and impermissible free riding. All “free riding” is unfair,” the court said.
The court further noted the foreseeable damage to Emami's business and goodwill resulting from such misrepresentation. The court emphasised that “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.”
During the proceedings of the trademark infringement plea filed by Emami, the company argued that the term 'Handsome' held significant secondary meaning and served as a cornerstone of its brand identity. In contrast, Hindustan Unilever Limited (HUL) contended that 'Handsome' was merely descriptive and not exclusively linked to Emami.
Following deliberations on both sides, the court acknowledged Emami's substantial investment and dedication in building the 'Fair and Handsome' brand. It observed that HUL's incorporation of 'Handsome' into its product name was a calculated decision, despite a prior dismissal of its application for the mark's registration.
The court further highlighted HUL's obligation to ensure that its branding choices do not lead to confusion or infringement. It highlighted the sequence of events leading up to the adoption of 'Glow and Handsome' as indicative of unfair practices and desperation to capitalise on the term ‘Handsome.'
The court stated, “the petitioner has been able to make out a strong prima facie case on merits insofar as the case of passing off is concerned. The balance of convenience is overwhelmingly in favour of the orders being passed as prayed for by the petitioner.”
Consequently, the court granted interim relief to Emami.
Cause Title: Emami Limited vs Hindustan Unilever Limited
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