Fragrance “testers” exist so customers can sample a scent — not to be sold. When online sellers passed off Calvin Klein testers as genuine products, the Delhi High Court called it trademark infringement and unfair trade practice.
The dispute
In Coty Germany GmbH v. Xeryus Retail Private Limited & Anr, the plaintiff owned the “Calvin Klein” mark, adopted in 1967 from its founder, and its abbreviation “CK,” used across popular fragrances — CK One, CK One Shock, Eternity, Euphoria. It also claimed the stylised presentation of “CK” and “Calvin Klein” as original artistic works under the Copyright Act.
The grievance: the defendants used the plaintiff’s marks on their sites (perfumery.co.in and unboxed.in) and — critically — sold testers of the plaintiff’s products for commercial gain.
Why selling testers is the problem
Testers are meant solely for promotion, letting customers sample a fragrance before buying — they should not be offered for sale. By disguising testers as genuine perfumes, the defendants misled customers into thinking they were buying authentic commercial products. That, the plaintiff argued, was deceptive, damaging its brand reputation and consumer trust — an unfair trade practice on top of infringement.
The ruling
The defendants didn’t appear, so the court accepted the plaintiff’s assertions. On the evidence, it found the defendants had unlawfully passed off their own products and the plaintiff’s testers as authentic goods for commercial gain, deceiving the public — constituting trademark infringement.
The court ruled for the plaintiff, ordered the defendants to cease the infringing activities, and directed them to pay ₹1 lakh towards the plaintiff’s costs — a clear message on safeguarding IP and maintaining ethical market practices.
The takeaways
- Testers are not for sale. Selling promotional testers as products is deceptive and actionable.
- It’s both infringement and unfair trade practice — passing off testers as genuine goods misleads consumers.
- Non-appearance costs defendants — unrebutted, the plaintiff’s allegations were accepted.
- Brand owners can act against grey-market and tester sales that erode trust.
Frequently asked questions
Is selling fragrance testers illegal in India? Selling testers as if they were genuine retail products can amount to trademark infringement and unfair trade practice, as the Calvin Klein case shows — testers are meant only for promotional sampling.
What did the court order in the Calvin Klein case? It restrained the defendants from the infringing activities and directed them to pay ₹1 lakh towards the plaintiff’s costs.
Why is passing off testers as products deceptive? It misleads consumers into believing they’re buying authentic commercial products, harming the brand’s reputation and consumer trust.
What happens if a defendant doesn’t appear? The court may accept the plaintiff’s assertions as unrebutted, as it did here, and decide accordingly.
Legislation referred to
- The Trade Marks Act, 1999