Deceptive similarity and injunction breach can persist despite cosmetic product changes; Rule 2A enforcement remains available.

Deceptive similarity in altered product trade dress can continue to amount to breach of an injunction where the dominant visual features remain intact; cosmetic changes to textmarkers, including minor alterations to lettering, layout and barrel colour, were treated as insufficient to avoid confusion and the breach was found to persist. Order 39 Rule 2A of the Code of Civil Procedure was stated to be available in the High Court's original jurisdiction despite the existence of contempt powers, because the rule addresses disobedience or breach without requiring wilful disobedience. On the facts, civil detention was refused, but conditional attachment was directed as enforcement relief.

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Issues: (i) Whether the defendant's altered textmarkers still amounted to breach of the injunction by retaining deceptive similarity to the plaintiff's products; (ii) whether Order 39 Rule 2A of the Code of Civil Procedure could be invoked in the High Court's original jurisdiction notwithstanding the availability of contempt powers; (iii) what relief under Order 39 Rule 2A was appropriate on the facts.

Issue (i): Whether the defendant's altered textmarkers still amounted to breach of the injunction by retaining deceptive similarity to the plaintiff's products.

Analysis: The injunction had restrained use of any trade dress, colour scheme, layout or mark deceptively similar to the plaintiff's textmarkers so as to pass off the defendant's goods as those of the plaintiff. The defendant's changes were limited to deletion of the word used on the barrel, alteration of layout, and change of barrel colour. On comparison of the original and altered products, the reasoning was that the dominant features that created deceptive similarity had not been obliterated. The bright lettering, overall get-up, glossy black barrel and visual impression to a purchaser of average intelligence and imperfect memory continued to create confusion. The alteration was treated as cosmetic rather than real or substantial.

Conclusion: The altered textmarkers still constituted breach of the injunction and were not sufficiently distinguished from the plaintiff's products.

Issue (ii): Whether Order 39 Rule 2A of the Code of Civil Procedure could be invoked in the High Court's original jurisdiction notwithstanding the availability of contempt powers.

Analysis: The reasoning was that Order 39 Rule 2A is not confined to subordinate courts. The existence of contempt jurisdiction under Article 215 of the Constitution of India did not bar resort to Rule 2A where breach of an injunction granted by the High Court was shown. A further distinction was drawn between civil contempt, which requires wilful disobedience, and Rule 2A, which uses the wider expression disobedience or breach without importing a wilfulness requirement.

Conclusion: Order 39 Rule 2A was held applicable and maintainable in the High Court's original jurisdiction.

Issue (iii): What relief under Order 39 Rule 2A was appropriate on the facts.

Analysis: The relief under Rule 2A was treated as discretionary and capable of being curative by attachment or punitive by civil detention. The Court declined to order detention in civil prison, taking note that the defendant had made changes and had given an undertaking to make further alterations. In view of that undertaking, immediate attachment was not ordered, but a conditional attachment was directed so that the dyes used to manufacture the offending textmarkers would stand attached if the undertaking was breached.

Conclusion: Detention was refused, but conditional attachment of the dyes was ordered.

Final Conclusion: The motion succeeded in substance because the altered products were held to continue the breach, the High Court's Rule 2A jurisdiction was affirmed, and conditional enforcement relief was granted in place of imprisonment.

Ratio Decidendi: For purposes of Order 39 Rule 2A of the Code of Civil Procedure, breach of an injunction may be found without proof of wilful disobedience, the High Court may invoke that rule in its original civil jurisdiction, and cosmetic alterations that do not remove deceptive similarity continue the breach of the injunction.

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