This article is written by Aditya Anand, from Symbiosis Law School, Noida. In this article, the author has covered the concepts of packaging and identical packaging as well as discussed it with a case study for a comprehensive understanding.

Introduction

The packaging of the products has been playing an important role in consumer-oriented markets where customers are the leaders of the market. The business-to-customer process offers a wide variety of products that can be identical. Distinctive features and the established name provide a competitive edge over its competitors. There are hundreds of companies that provide products and they are kept side by side in the malls. Packaging plays an important role as they define the qualities and uniqueness of the products. The competitors try various methods nowadays to deceive the customers by creating somehow identical packages or little alteration of the names to gain the market shares. The identical packaging cases have been observed recently so a better understanding of the concept of packaging and its aspects has been analyzed. 

Packaging 

Packaging is defined as the set of activities in the planning of a product. The activities consist of formulating a design of the package and producing an attractive package for a product. The package can itself act as a registered brand. The ultimate goal of the packaging is to encourage, promote and satisfy their customers. It is the coordinated system of preparing goods from production to consumption. There is a process involved from transportation to end consumption and to preserve and protect the goods, packaging plays a very important role.

The goal of the packaging is to wrap goods to look attractive as well as to secure safety. It includes the implied work of holding together the contents and protecting the products when it passes through a series of distribution channels. According to Philip Kotler, the definition of packaging is the “protection, convenience and economy were the three traditional purposes attached to the package.” But in this modern era, we need to add all the modern functions of packaging.

The packaging can affect the decisive factor of the customer as well as provide a competitive edge over its competitors. Consumers get more encouraged to buy a particular product when they get attractive packaging, and thus, this has now been a marketing necessity as the public thoughts are not only confined to buy a product but also an explanation, assurance, and promotion for that product. The modern era of marketing has a consumer-oriented approach, as due to high competition, they are leaders in choosing the products. It also keeps the products safe and hygienic. Packaging is also one of the activities in marketing. 

The purpose of the packaging is to enable marketing, convey a message, enable product identification, promote brand image, and prevent any types of contamination as well as provide physical protection. 

Classification of packaging 

There are three types of packaging that can be classified into three parameters: value, physical composition, and durability. 

Family packaging 

A package of a particular manufacturer who identically packs its products is known as family packaging. The shape, colour, and materials used for packaging will be similar for all the products. The design would be the same for all the products. 

Reuse Packaging

Packages that can be used for other purposes after the goods have been consumed are called reusable packaging. For example, a jam bottle that is made up of glass can be used to store something after consumption. Reusable packaging encourages consumers to buy the product. 

Multiple Packaging 

The package can be used to pack varieties of goods and so it is called multiple packaging. The benefit of such types of packaging is that it helps in increasing the aggregate sales of goods. It is the practice of putting several units in one package such as the example of the liquor industry. 

Identical packaging

There are various competitors in the markets and due to stiff competition, most of the competitors try to deceive the customer by supplying the same type of label and packaging against the famous products. When a similar type of packaging or names stated on the label is used for marketing, it is called identical packaging. The purpose of such a type of packaging is to get a competitive edge over its customers. However, identical packaging is not legal in India as they are not acceptable as per the laws of the country. Although there are no codified laws regarding the punishment for identical packaging, the judicial system has restrained and passed orders as per the case may be to prohibit this kind of malpractice of identical packaging. 

Laws related to it

There are no specific laws or any such acts related to identical packaging. The chief regulating laws are mostly dealt with in some areas as follows.

Bureau of Indian Standards

The government-regulated organization called the Bureau of Indian Standards (BIS) is the National Standard Body of India that is responsible for the harmonious development of the activities of standardization, marking, and quality certification of goods and for matters connected therewith or incidental thereto. They innovate, promote and review the products.

The Legal Metrology Act, 2009 and Packaged Commodities Rules, 2011

The Act has been mandated to formulate the Rules regarding the pre-packaged commodities and their labelling requirements that is before the sale of the commodities to the ultimate consumers. The need for this law is for better regulation of packaging.

Food Safety and Standard Authority of Indian Act, 2006 and Rules, 2011

The FSSAI Act and Food Safety and Standards (Packaging and Labelling) Regulations, 2011. These Regulations provide for the manner of marking and labelling food. The Regulations provide for general packaging requirements including the materials or metals used and for packaging requirements for specific food products.

The Trade Marks Act, 1999

This Act provides unique identification of the goods and services which is capable of distinguishing it from other companies. 

The Copyright Act, 1957

The Act protects any kind of artistic works from unauthorized uses, for example, the label or the symbol used in the packaging that can be unique and has sole ownership of the author. 

These procedural laws are very specific and extensive to cover all kinds of identical packaging disputes. These laws are taken into consideration depending upon the nature of the case. 

Case study of identical packaging 

It was found in most of the cases that there are no penal penalties such as imprisonment and the remedies are convenient for the defendant as well. The case of Parle Products Pvt Ltd. And Anr vs Future Consumer Ltd. And 4 Ors, (12 January 2021) is going to be discussed thoroughly for better clarity and understanding of the laws related to identical packaging. It has been a few months since Parle Products Pvt. Ltd. filed a civil suit against Future Group Ltd., accusing them of identical packaging infringement. 

It was contended that the plaintiff has a copyright that is combined with a cause of action for passing off, wherein it was later found that the defendant’s products had identical or deceptive similar packaging to that of Parle’s products. Parle Products is a food item company that primarily sells various kinds of biscuits with their unique names and packing. The items such as CrackJack, Monaco, Hide and Seek, and other such various products have also been listed on the Parle official website. 

Now as per the present case, Bombay High Court restrained Future Consumer Ltd., the defendant company in this case, from infringing Parle’s trademark in terms of the packaging of its products by passing an ad-interim injunction order. The Court held that “There is no doubt that the rival labels are being used for identical products under nearly identical packaging and trade dresses. The similarity in the rival packaging/labels cannot be a matter of coincidence.”

 Facts of the case 

• Parle Products Pvt. Ltd., the plaintiff in the case, is the most chosen Fast-Moving Consumer Goods (FMCG) brand since 2010. Plaintiff manufactures and sells a wide variety of biscuits, not limited to confectioneries, cakes, wafers, etc.

• Plaintiff introduced the biscuits and started manufacturing in the years 1939, 1971, and 1996 where the popular biscuits are named as – “MONACO”, “KRACKJACK” and “HIDE&SEEK” respectively.

• Plaintiff has also secured trademarks on the biscuits and to secure its statutory rights in the “MONACO”, “KRACKJACK” and “HIDE & SEEK” trademark, they had applied for and secured trademark registration in respect of the same under the Trade Marks Act, 1999 without any objections and it was duly registered. 

• After a long time, the plaintiff, in July 2013, July 2014, and May 2017, redesigned and created the latest packaging for “MONACO”, “KRACKJACK” and “HIDE&SEEK”, respectively.

• Further, it was disclosed that the plaintiff’s packaging was created by Mr. Mayank Shah, an employee of Plaintiff during his course of employment. Therefore, the plaintiff is the original owner of the copyright in the packaging.

• Now last year in and around the second week of September 2020, the plaintiff came across the defendants’ biscuits bearing the mark “CRACKO”, “KRACKER KING” and “PEEKA-BOO” having trade dress or packaging or labels that were identical with and deceptively similar to the trademark registered products and substantial reproduction of Plaintiff’s packaging.

Issues Involved

When it came to the notice of the plaintiff, to further support their arguments, the Plaintiff produced photographs of the Defendant’s impugned products “CRACKO”, “KRACKER KING”, & “PEEK-A-BOO” which were identical or deceptively similar to plaintiff’s products “MONACO”, “KRACKJACK”, and “HIDE AND SEEK” and the authenticity of products was verified with a cash memo of sale of the impugned products in Big Bazaar outlet in Vile Parle, Mumbai. The plaintiff raised the issue of infringing on the rights by the defendant by selling identical packaging and so after the analysis two issues had been identified that were of concern to the plaintiff.

The aforementioned findings resulted in the formation of the following issues before the Bombay High Court:

1. Who are the original owners of the copyright that is used by the Plaintiffs in the packaging of their products “MONACO”, “KRACKJACK” and “HIDE & SEEK”?
2. Whether the Defendants have blatantly copied the plaintiff’s packaging and label concerning their aforementioned products?

Plaintiff’s Contentions

• The plaintiff supported their arguments by presenting the renowned value of the brand. According to the Nielsen Report for the year, 2010, Plaintiff’s brand PARLE-G was certified as the world’s largest selling biscuit brand and this was contended by the plaintiff to let the court acknowledge the brand value and their importance. 
• It was further supported that since the beginning of the established brand, the plaintiff has been honestly, publicly, continuously, and extensively using their packaging system regarding the manufacturing of goods to the ultimate consumption in respect of their goods in India.
• The plaintiff has taken various efforts to popularize its products bearing its packaging and gaining the market share along with the trust and confidence of the customers. They have been spending a good sum of money and efforts on various advertisements and to popularize and promote their products and eventually to increase the sales of their goods in India.
• The plaintiff has also provided substantial proof of the distinctive features of their products and it was stated that its packaging includes the features certain qualities that have become distinctive of its goods and differentiate and creates the uniqueness of the product in the common public and marketing of such goods is done solely by the plaintiff and no one else. 
• It was further briefed about the incident that how the defendants have intentionally stocked their impugned products on the shelves alongside the plaintiffs’ products and it was argued by the plaintiff that how the common people would get deceived from such identical products. 
• It was claimed that the Defendants had copied every element of Plaintiffs’ packaging including the layout, colour combination, placement, and all distinctive elements and features of Plaintiffs’ packaging to the last millimetre.
• He further submitted that the defendant’s usage of the plaintiff’s trade dresses, labels, and packaging amounted to a strict violation of the trademark and copyrights norms as per the laws of the country and stringent actions should be taken against the accused of Plaintiff’s copyrights’ encroachment and passing off.

Judgment 

• The facts and the arguments were presented before the court and it was noted by the Hon’ble Bombay High Court that a comparison of the rival products hardly leaves any doubt about how Defendants have completely copied the plaintiffs’ packaging or labels in an unashamed manner. The court provided further arguments.
• Undoubtedly, the rival labels are being used for identical products under nearly identical packaging and trade dresses. The labels or artworks or packaging or trade dresses of defendants’ “CrackO”, “Kracker King” and “Peek-a-Boo” products are similar to the Plaintiffs’ Packaging that is used by them in the products such as “MONACO”, “KRACKJACK” and “HIDE & SEEK” products and further reproductions of substantial parts thereof.
• It was suggested by the court that the defendants must have possessed the plaintiffs’ products with them while designing the impugned packaging. Any kind of similarity in the rival packaging cannot be a matter of coincidence.
• The Court confirmed the original owner of the copyrights on the packaging of their products and supported the arguments with the relevant evidence and further stated that the plaintiffs were the original owners of copyrights on they have the original rights as per the rule mentioned in the packaging of their products through which their brand ‘Parle’ has gained substantial value in terms of reputation and goodwill.
• As per the facts of the case, the Bombay High Court passed an ad-interim injunction order to restrain the defendants from reproducing, manufacturing, selling their products that are identical or deceptively similar to that of the plaintiff’s products’ packaging, labeling, trade dress, layout, or colour scheme to pass off their impugned products as the plaintiff’s products.

Conclusion

Identical packaging is not legal as per the laws of the country and it can be concluded as per the decision undertaken by the court. Although the court has justifiably dealt with the cases due to the absence of established norms related to identical packaging, there should be compliance of norms and it gets impliedly governed by the other laws existing in the country. Thus, the court takes these matters very seriously to protect the distinctive labels and packaging of the companies and to secure their essence from rival companies.   

References

• https://www.lexology.com/library/detail.aspx?g=081e00c7-079d-4ec9-9774-d76625f91b14
• https://www.mondaq.com/india/trademark/1017468/identical-packaging-infringement-india-future-group-restrained
• https://www.yourarticlelibrary.com/marketing/marketing-management/packaging-and-branding/what-is-packaging/99721
• https://ssrana.in/articles/identical-packaging-infringement-india/#:~:text=The%20Court%2held%20that%20%E2%80%9CThere,be%20a%20master%20of%20 coincidence.%E2%80%9D

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