CAREW PHIPSON LIMITED Vs. DEEJAY DISTILLERIES PRIVATE LIMITED

JUDGEMENT

(1.) IN an action for passing off and for infringement of copyright, the plaintiffs have filed the present Notice of Motion for interim reliefs. Briefly, the facts giving rise to the controversy are as follows :-

(2.) THE plaintiffs are manufacturers of and distribute spirituous liquors such as gin, whisky, brandy and other liquor and alcoholic preparations. The defendants are also manufacturers of and blenders and bottlers of and market Gin and other liquor and alcoholic preparations. The plaintiffs claim that they were the first in the field to come out with the concept and idea to manufacture an alcoholic preparation being a premixture of gin and lime. The plaintiffs then got prepared an original artistic work with the intention of it being applied to the bottle label for the said preparation. The trade mark which was given to this preparation was the word "duet" as also the trade mark "gin N LIME". The plaintiffs also filed application for registration of their trade mark "duet GIN N LIME" and the said application is pending. The plaintiffs have also introduced a preparation being a premix of Gin and Orange called "tango GIN N ORANGE". This preparation is sold in a bottle having original artistic work. The plaintiffs spent considerable amount for popularising their products "duet Gin N Lime" and "tango Gin N Orange" and according to the plaintiffs these preparations have acquired reputation and goodwill in India. The plaintiffs complain that the defendants have introduced in the market products which are deceptively similar with the plaintiffs products. The defendants have introduced a bottle label bearing a deceptively similar colour combination and colour scheme as those adopted by the plaintiffs with a mark "english DUET GIN N LIME" and "duet GIN N ORANGE" which is deceptively similar to the marks of the plaintiffs. The defendants have used the same get-up and scheme of arrangement which appears in the plaintiffs bottle label which is a piracy of the artistic work in their "duet Gin N Lime" bottle label and their "tango Gin N Orange" bottle label. The plaintiffs therefore issued a cease and desist notice dated August 16, 1993 and since the defendants refused to comply with the requisitions contained in the said notice, the plaintiffs have filed the present suit and taken out this Notice of Motion for interim reliefs.

(3.) THE defendants have opposed the prayers for interim reliefs contending inter alia that the word "duet" and words "gin N LIME" and "gin N ORANGE" cannot be used as trade marks in respect of premixture preparations of "gin and Lime" and "gin and Orange" as the said words are not invented words and have direct reference to the quality and character of the goods in respect of which the same are applied. The defendants contend that the trade mark of the plaintiffs is "blue RIBAND" and their products are sold in the market as "blue RIBAND DUET GIN N LIME" and "blue RIBAND TANGO GIN N ORANGE". The labels of the word "duet" and words "gin N LIME" applied on the bottle of Gin suggest that the said preparation of Gin contained in the bottle is made of Gin and Lime or is mixture of Gin and Lime. Thus the said words have direct reference with the quality and character of the goods. Similarly the label containing the words "tango Gin N Orange" used on bottles for preparation of Gin also suggest that the said preparation of Gin is the combination of the two, namely, Gin and Orange or is a mixture of Gin and Orange. As regards the plaintiffs claim for infringement of their alleged copyright of the bottle labels, the defendants contend that their labels are altogether different than those of the plaintiffs. The colour scheme designs, lettering and devices of both the labels are quite different in all respects. The defendants also deny the plaintiffs claim that their products have acquired reputation.