PEPSICO INC Vs. SUNRISE BEVERAGES

JUDGEMENT

(1.) The present suit is filed by the plaintiffs praying for a decree for permanent injunction restraining infringement of trademark, copyright, passing off, and also acts of unfair competition and also for a decree of rendition of accounts. The plaintiffs also filed an injunction application which was registered as IA No. 2922/2002. The plaint and the injunction application were listed before this Court. While issuing summons in the suit by order dated 20.3.2002 an ad interim ex parte injunction was also granted in favour of the plaintiffs and against the defendant and their agents restraining them from manufacturing and marketing their products under the marks/name "7 UP", "UP" and "SEVENTH UP" or any other mark, which may be identical with or deceptive similar to the plaintiff's trademarks. As notice was also issued on the said application, the defendant was served with both the summons and the notice pursuant to which the defendant has filed also an application under Order XXXIX Rule 4 CPC praying for vacation of the aforesaid interim injunction passed by this Court. Both the aforesaid application, namely, one under Order XXXIX Rules 1 and 2 CPC and the other under Order XXXIX Rule 4 CPC were listed before me when the counsel appearing for the parties argued the said applications at length. By this order I proceed to render my decision on the said applications.

(2.) The plaintiffs in the suit have stated they have been using the trademarks "SEVEN UP", "7UP" (in logo) for soft drink beverages in India and internationally for a number of years and the said trademarks of the plaintiffs have acquired word-wide recognition and reputation. The aforesaid trademarks, therefore, have come to be associated exclusively with the plaintiffs and their products. It is also alleged that the marks "UP" and "SEVEN UP/7UP" are also the registered trademarks of the plaintiffs in India. It is also claimed that the said marks and logo are written in distinctive manner and the plaintiffs are the owners of the copyright in the said logo in India. It is alleged that the adoption of the marks "7thUP", "SEVENth UP" by the defendant not only constitutes violation of the plaintiffs statutory rights but the same also would cause confusion in the mind of the general public inasmuch as the marks adopted are visually and phonetically similar to the plaintiffs' said trademarks. It is also stated that the use of the marks "7thUP", "SEVENth UP" by the defendant also constitutes misrepresentation in the course of the trade to the consumers, which has led to the confusion and deception as to the origin and source of the said product. The plaintiffs have stated that the confusion could be two fold viz., that the defendant's product belongs to the plaintiffs or that the defendants is in some manner connected to the plaintiffs.

(3.) The defendant, however, contested the aforesaid statements made by the plaintiffs in the written statement and the application filed under Order XXXIX Rule 4 CPC. It is submitted that the suit itself is not maintainable as this Court does not have the territorial jurisdiction to try and entertain the present suit and also due to delay and laches and acquiescence on the part of the plaintiffs in approaching the Court. It was further stated that the two competing trademarks of the plaintiffs and the defendant are in different and distinctive styles and that the plaintiff's product is packed in green coloured glass bottles and the flavour and contents of the bottle is clear lime, which is an absolutely transparent beverage whereas the defendant's product is packed in a transparent bottle and the contents thereof are sold in different flavours and colours like cola, lime, orange etc. It was also submitted on behalf of the defendant during the course of the submissions by the counsel for the defendant that no evidence has been furnished by the plaintiffs as to the claim of registration and the renewal of the registration of the impugned marks by the plaintiffs. It was vehemently submitted that there was neither any infringement of the trademarks by the defendant nor the registration of the trademarks of the plaintiffs was violated. It was also submitted that there is no infringement of copyright as the artistic work is in different style. Further submission was that there was no passing off or unfair competition by the defendant. In the light of the aforesaid factual position and the submission of the counsel for the parties, I proceed to scrutinise and examine the rival submissions of the counsel for the parties.