Background and Procedural History
Emami Limited’s NAVRATNA Ayurvedic Tel has been sold in India since January 1989, more than three decades before Dabur launched its competing product. The NAVRATNA product’s annual sales turnover grew from Rs.14.77 lakhs in FY1990-91 to Rs.585.6 crore in FY2021-22, with cumulative sales of Rs.4,927 crore between FY2009-10 and FY2024-25. The product had become one of the most recognisable cooling oil brands in India across mass consumer segments.
Dabur launched Cool King Thanda Tael on 6 May 2023. Emami filed suit in August 2023, and an ex parte ad-interim injunction was granted on 9 August 2023 restraining Dabur from selling the product in its impugned packaging. Dabur appealed to the Division Bench. On 21 August 2023, the Division Bench (Justices Yashwant Varma and Dharmesh Sharma) set aside the August 2023 injunction and remanded the matter back to the Single Judge for consideration of Dabur’s affidavit. The interim application was thereby reactivated before Justice Tejas Karia, who delivered the present judgment on 31 January 2026 after extended hearing.
The Trade Dress Comparison
The following table maps the essential features of the two products as identified and compared by the Court.
| Feature | Emami NAVRATNA | Dabur Cool King Thanda Tael |
| Bottle | Red-coloured transparent bottle | Red-coloured transparent bottle (similar shape) |
| Cap | Flip-top cap | Flip-top cap (similar colour) |
| Oil colour | Red-coloured oil | Red-coloured oil |
| Colour scheme | Red, white, yellow and gold | Red, white, yellow and gold |
| Imagery | China rose (hibiscus), pudina leaves, ice cubes | China rose (hibiscus), pudina leaves, ice cubes |
| Text elements | Raahat, Aaraam, Tarotaazgi (in this sequence) | Similar expressions in similar sequence |
| Relief depiction | Troubled man with headache/fatigue/stress imagery | Inset of a troubled man |
| Quantity | 270 ml | 270 ml (identical) |
The 270 ml coincidence
The Court specifically noted that even the quantity of oil, 270 ml, was identical in both products. While a single quantity cannot be monopolised, its adoption by Dabur alongside every other feature of the Navratna trade dress was treated as further evidence that the similarity was not coincidental. The Court observed that the common features in the two trade dresses did not appear to be a mere coincidence.
Issues for Determination
At the interim stage under Order XXXIX Rules 1 and 2 CPC, the Court examined four questions.
- Whether the Plaintiff had established prima facie goodwill in its trade dress.
- Whether the Defendant’s trade dress was deceptively similar.
- Whether the elements relied upon were common to trade or descriptive.
- Whether the balance of convenience justified grant of injunction.
Judicial Reasoning
1. The passing off trinity test
The Court applied the three-limb test for passing off: goodwill, misrepresentation, and damage. On goodwill, the Court found that Emami had established prima facie goodwill through consistent and uninterrupted use of the NAVRATNA trade dress since 1989. The sales trajectory, from Rs.14.77 lakhs in 1990-91 to Rs.585.6 crore in 2021-22, demonstrated long-standing and formidable reputation in the cooling oil segment. On misrepresentation, the impugned trade dress was found deceptively similar. On damage, continued use would cause irreparable harm to goodwill and brand identity.
2. Overall comparison, not element-by-element dissection
The Court reaffirmed the settled principle that passing off is determined by overall impression, not by forensic side-by-side comparison of individual elements. Drawing on Cadila Healthcare, it applied the standard of an average consumer of average intelligence with imperfect recollection, encountering the products at the point of sale in ordinary market conditions. That consumer does not conduct a detailed analysis. They rely on overall visual impression, particularly in the fast-moving consumer goods context where purchase decisions are made quickly.
The focus must be on the similarities rather than the dissimilarities. The dominant similarities between the impugned trade dress and the plaintiff’s trade dress overwhelm the minor differences. The overall appearance at first impression is what matters.
3. Protection of the ensemble, not the components
Dabur argued that red colour, China rose, pudina leaves, and ice cubes are common and descriptive in the cooling oil segment and cannot be monopolised. The Court accepted this limitation in principle but immediately identified the protectable interest: not the individual elements, but their specific combination, arrangement, and presentation. This ensemble had been in use for a considerable period, had acquired secondary meaning through long-standing use and advertising, and had come to be associated by consumers with NAVRATNA specifically. Even where individual components are common to the trade, the overall get-up requires protection once it has acquired such secondary meaning.
4. The house mark defence rejected
Dabur contended that its prominent house mark, DABUR, was sufficient to distinguish its product from Emami’s and to dispel any consumer confusion. The Court rejected this. Where the overall trade dress creates an impression of imitation, the presence of a house mark does not cure the confusion. Consumers encountering the product on a shelf do not conduct a letter-by-letter comparison of brand names. They respond to the overall visual get-up first. If that get-up evokes the established brand, the house mark on the packaging is insufficient to redirect the consumer’s initial association.
5. Absence of explanation from Dabur
The Court noted that Dabur had not offered any explanation or bona fide reason for adopting a trade dress with features identical to the plaintiff’s. In the absence of explanation, the Court drew the natural inference: the adoption was deliberate. No innocent explanation was offered; none was found.
The Relief Granted
Having found that Emami had established a prima facie case, that the balance of convenience lay in its favour, and that monetary compensation would not be adequate given the harm to brand identity and consumer trust, the Court granted the interim injunction.
Dabur was restrained from manufacturing, selling, advertising, or dealing in its ayurvedic hair oil, Cool King Thanda Tael, under the impugned trade dress or any other trade dress deceptively similar to Emami’s NAVRATNA trade dress, during the pendency of the suit. The Court clarified that the findings were prima facie and would not prejudice the final determination at trial.
Conclusion
Emami v. Dabur is a clear restatement of the law of passing off as applied to product trade dress in the FMCG context. Courts will look at the overall visual impression experienced by an ordinary consumer at the point of sale, not at isolated elements or their individual registrability. Where an established trade dress has acquired secondary meaning through long use, its specific combination and arrangement is protectable even where no single component could be monopolised alone.
The decision reinforces a consistent judicial approach: passing off protects market identity as experienced by consumers, not merely registered word marks. If the overall look and feel of a product feels the same to a typical consumer, the law is likely to treat it the same. For businesses, the practical lesson is clear: build your own visual identity, do not replicate your competitor’s.
Governing Law
Trade Marks Act, 1999 (passing off; trade dress) | Code of Civil Procedure, 1908: Order XXXIX Rules 1 and 2 |
