EXPRESS BOTTLERS SERVICES PVT LTD Vs. PEPSICO INC

JUDGEMENT

(1.) THIS is an appeal against the judgment and order of Kurdukar, J. granting an injunction restraining the defendants from infringing the plaintiffs' trade marks PEPSI, PEPSI-COLA and PEPSICO pending the disposal of the suit. The defendants are in appeal.

(2.) THE plaintiffs are an American company and are the registered proprietors in India of the aforementioned three trade marks under Class 32 of the Trade and Merchandise Marks Act, 1958 (hereinafter called "the Act"). THE said trade marks operate in respect of non-alcoholic beverages, syrups and concentrates. THE said trade marks were used in India between the years 1956 and 1961. Use thereof then ceased by reason of Government policy in respect of foreign companies and their trade marks. Judicial notice may be taken of the fact that they have entered the Indian marked again and are utilising the said trade marks.

(3.) THE Division Bench found that Suresh, J. had exercised discretion against the plaintiffs mainly because he was not convinced about the extent of residual reputation enjoyed by their products in India. Since the Division Bench was not in a position to observe that he had applied erroneous principles or not appreciated the facts property, it did not find it proper or open to it to set aside that part of his order which dealt with passing off and hold that even on that ground the plaintiffs were entitled to an injunction.