How ‘common man’s memory’ saved ITC ‘Gold Flake’ in Calcutta High Court

The Calcutta High Court has ruled in favor of ITC, upholding a temporary injunction against a manufacturer of cigarettes that bear a mark deceptively similar to ITC's Gold Flake brand. The court emphasized that the "common man" goes to the market without a photographic memory of a product's exact mark when purchasing. Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya were hearing an appeal filed by IJM Gold Stag cigarette manufacturer against a temporary injunction granted to ITC.

The court's decision stated that the test for passing off or infringement is based on the average consumer, who does not scrutinize the mark in isolation. The High Court noted that ITC's trademark had gained secondary meaning over 85 years of usage, making it integral to its product. The bench observed that visual comparison of the trademarks revealed sufficient similarity, making it difficult for consumers to distinguish between the two products, especially considering the limited space for unique marks on cigarette packaging.