Calcutta High Court: Health Warnings Count When Comparing Cigarette Packs
Where regulation takes over most of a package, the small space left for branding becomes more important. A Division Bench of the Calcutta High Court reached this conclusion in an appeal over ITC's GOLD FLAKE cigarettes (2026:CHC-OS:400-DB). The judgment was dated 18 September 2026 and was analysed by WTR on 8 October 2026 and by LiveLaw.
A single judge had granted ITC an interim injunction against a rival cigarette brand and its packaging. One of the defendants appealed. We do not name the defendant because the ruling is interim and no final finding of infringement has been made.
The 85% question
Indian rules under the Cigarettes and Other Tobacco Products Act 2003 require 85% of the main display area of a pack to carry a health warning. The appellant argued that only the remaining 15% should be compared. The bench disagreed. It reasoned that when so little space is left, even a slight similarity can mislead, and that buyers see the whole pack, warning included, at the point of sale. It relied on earlier rulings from the Calcutta, Delhi and Madras High Courts in other ITC disputes, according to WTR.
The ordinary buyer and the word "Gold"
The court applied the test of an ordinary purchaser with imperfect recollection. It held that yellow and gold tones, red, and the word "gold" could together create a similar overall impression, and that price differences might make deception worse rather than better. On the argument that "gold" is a common laudatory word that ITC had disclaimed, the bench noted that the disclaimer appeared on only one registration. It held that ITC had made a prima facie case that "Gold" had acquired secondary meaning through use since 1905. The appeal was dismissed and the injunction affirmed.
Relevance for Indonesia
Indonesia also requires pictorial health warnings on tobacco packs, which limits the space available for branding. Under Law No. 20 of 2016, likelihood of confusion is assessed on the overall impression. We are not aware of an Indonesian decision that has addressed this specific question about warning areas. The Indian reasoning is a useful reference for any sector with strict packaging rules, such as pharmaceuticals.
Sources
Do you or your clients need trademark, patent, annuity or industrial design work in Indonesia? We handle filings, prosecution and renewals, with updates in English. Email us for a quote.
Contact UsIf you enjoyed this article on our portal, you can buy me a coffee via the PayPal link below.
PayPal
