A special bench of five judges of Delhi High Court in its judgment in Carlsberg Breweries v Som Distilleries and Breweries Limited held that a composite suit that joins two causes of action – one for infringement of a registered design and the other for passing off – is maintainable.
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This overrules the judgment of the three-judge bench of Delhi High Court in Mohan Lal v Sona Paint (2013), where it was held that these two actions cannot be combined in one suit. The majority view in this case was that the cause of action for a suit for infringement of a registered design is different from the cause of action on which a claim of passing off is premised and therefore two separate suits have to be filed.
In the Mohan Lal case, the reasoning was that a design infringement suit would be for the claim of monopoly based on registration, which is premised on uniqueness, newness and originality of the design while an action for passing off is founded on the use of the mark in the trade for sale of goods and for offering services, generation of reputation and goodwill, association of the mark to the plaintiff’s goods and the misrepresentation sought to be created by the defendant by the use of the plaintiff’s mark.
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Omesh Puri is an associate partner and Dheeraj Kapoor is a senior associate at LexOrbis.
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