STOKELY VAN CAMP Vs. HEINZ INDIA PRIVATE LTD

JUDGEMENT

(1.) THE plaintiffs/appellants by means of the present appeal impugn the order dated 31.5.2010, passed by the learned Single Judge of this Court, dismissing the I.A.No. 3646/2010 filed by the appellants/plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908. By the application under Order 39 Rules 1 and 2, the appellants sought the relief for restraining the respondent/defendant from using mark/expression "Rehydrates Replenishes Recharges" or any other expression identical or deceptively similar to the plaintiffs said mark/expression in relation to any of the respondents products including beverages, health drinks etc. THE application for injunction was filed in a suit claiming infringement of the registered trademark of the plaintiffs "Rehydrates, Replenishes, Recharges". THE suit also claimed reliefs of injunction with respect to passing off, unfair competition, dilution and damages etc. THE arguments in the appeal have however been confined to the issue of infringement.

(2.) THE appellants are manufacturing and selling the sports drink "Getorade" and for which it uses the expression "Rehydrates, Replenishes Refuel". THE sales turnover of "Getorade" in India has been given in the plaint for the years 2007 to 2009. In 2007, the appellants reportedly achieved a turnover of Rs.6.20 crores which in 2008 is said to have gone up to Rs.8 crores. In 2009, however, the turnover seems to have dipped to Rs. 6.7 crores. THEre is also a reference to the advertisement spends of the appellants between 2005 and 2009. From an advertisement expense of Rs.40 lacs incurred in 2005, the annual expenditure which went up to Rs.5.20 crores in 2007 only to come down to Rs.2 crores in 2008, and then again go up to Rs.2.70 crores in 2009.

(3.) THE present case was argued along with FAO(OS) No. 352/2010 titled as Marico Ltd. Vs. Agro Tech Food Ltd. and where same and related issues were involved. We have on 1.11.2010 delivered the judgment in Marico's case. Since the present appeal is fully covered by the decision in the case of Marico Ltd., we would, at this stage, reproduce the conclusions arrived at in the said judgment and which are as under:- "21. THE following conclusions thus emerge:-