Delhi HC allows Dabur to sell existing 'Cool King Thanda Tael' stock till Sep 30 amid dispute with Emami

The Delhi High Court has allowed Dabur India Limited to sell its existing stock of 9,020 cartons of 'Cool King Thanda Tael' until September 30 amid a trade dress dispute with Emami Limited [Emami Vs Dabur]

Emami, which produces 'Navratna Ayurvedic Oil', had sued Dabur over the packaging used for 'Cool King Thanda Tael'. Dabur has been accused of trademark infringement, passing off and unfair trade practices

On January 31, the High Court had restrained Dabur from selling the product in the disputed trade dress after finding it deceptively similar to Emami’s packaging. Subsequently, Emami agreed to Dabur selling its existing stock.

On August 10, a Division Bench of Justices V Kameswar Rao and Manmeet Pritam Singh Arora said the permission would be subject to Dabur recalling all stock remaining unsold after the deadline.

Dabur also undertook to stop selling the product through e-commerce platforms and to immediately seek the removal of its listings and images from platforms such as Amazon and BigBasket. The existing stock will be sold only through physical shops operated by wholesalers and retailers.

The Court clarified that Dabur can avail the permission only if it is capable of recalling the unsold stock by September 30. Otherwise, it cannot proceed with the sale under the disputed packaging. It can instead repackage the goods using a trade dress distinct from Emami’s.

Earlier, on May 22, a division bench had upheld the injunction issued against Emami by a single-judge, observing that the similarity in the products’ overall appearance, layout and colour scheme was likely to mislead consumers.

Dabur subsequently moved the single-judge for permission to exhaust the stock manufactured before the injunction. On June 19, the single-judge allowed the request, subject to weekly disclosures of sales and recall of unsold products after September 30.

Emami challenged the order, arguing that the single-judge could not have modified the injunction upheld by a division bench.

The division bench accepted the argument and ruled that the single-judge lacked jurisdiction to entertain Dabur’s application.

Once the injunction was affirmed in appeal, the single-judge’s order merged with the division bench judgment, it said.

“The judicial hierarchy requires a subordinate court to give full effect to, and not pass any order inconsistent with, the determination of a superior Court,” the Court said.

The bench added that any clarification, relaxation or variation of the injunction could thereafter be sought only from the division bench or a superior court.

However, since Emami gave a no-objection for Dabur selling the existing stock in accordance with conditions imposed earlier, the Court preserved the single-bench permission by deeming it to have been granted by the division bench itself.

Senior Advocate Abhimanyu Bhandari appeared for Emami with advocates Roohe Hina Dua, Shrutika Garg, Dhwani Arora and Harshit Khanduja.

Senior Advocate Sandeep Sethi represented Dabur with advocates Kripa Pandit, Christopher Thomas, Krisna Gambhir, Shreya Sethi and Anirudh Bakhru.

[Read Judgment]