PEPSICO INC Vs. EXPRESS BOTTLERS SERVICES P LTD

JUDGEMENT

(1.) Pepsico Inc., the Plaintiffs herein, claiming to have worldwide reputation with regard to manufacture and sale of their non-alcoholic drinks, beverages, syrups etc. have filed this suit against the defendants, who have been carrying on business in the name and style of Pepsi Sodawater Company, on the basis that there is an infringement of their Trade Marks. The Plaintiffs are the Registered Proprietors in India of the Trade Marks PEPSI, PEPSI-COLA and PEPSICO and copies of the said Trade Mark Registrations are at Exhibits A-1 to A-3 to the Plaint. Admittedly, they have not been carrying on the business of manufacturing and sale of those products in India since 1961. Since recently they have been trying to restart the manufacturing in India but they have not been successful so far.

(2.) The Defendants have been manufacturing their products since about the middle of 1985. The Plaintiffs were not aware of this till they received a Notice from the Calcutta High Court of an application made by Defendant No. 1 for rectification under Section 46 of the Trade and Merchandise Marks Act, 1958. That was in September 1985. The Calcutta High Court has granted an injunction which restrains the Plaintiffs from in any way or manner using, utilising and advertising the said Trade Marks and other marks associated therewith in relation to mineral and aerated waters, non-alcoholic drinks, beverages, and other preparations till the disposal of that application. It appears that the Plaintiffs moved the Calcutta High Court to have the injunction vacated. But they were not successful.

(3.) In the present proceedings, the main contention is that irrespective of the said proceedings. In the Calcutta High Court, the fact remains that the Trade Marks of the Plaintiffs are still registered and, therefore, if it could be said that the defendants have infringed the Plaintiffs' rights with regard to those Trade Marks, an injunction must follow. The Defendants contend that the Plaintiffs on their own showing have not been manufacturing and selling these items since 1961 and if that is so there is hardly any goodwill in India, as far as the Plaintiffs are concerned. As far as interim injunctions are concerned assuming that the Plaintiffs have made out a prima facie case. Still the Courts have to consider the question of 'balance of convenience' and also as to whether it could be said that the Plaintiffs would suffer irreparable damages in the event interim injunction is not granted. In the present cases, according to me, the question mainly revolves on considerations relating to balance of convenience. The Plaintiffs say that they have been selling these items in India prior to 1961. But we have no evidence of the extent of any goodwill established in this country with regard to these products of the plaintiffs prior to 1961. In any event, since 1961 a quarter century has passed and obviously there cannot be an assumption of the plaintiffs having any goodwill with regard to these products in India. It is well settled that if a business is carried on in several countries, a separate goodwill attaches to it in each country. So, when the business is not carried on in any one country in which it has acquired any goodwill, that goodwill may not continue although the business may continue to be carried on in other countries. Therefore, it is necessary for the plaintiffs to show that even today they have a certain amount of goodwill in this country. Admittedly, they have not been manufacturing these products since 1961. But Mr. Chinoy says that they have been supplying some of their products to certain Embassies and some have been kept in certain warehouses. That is no evidence of the products being sold through local agents or in the market. Therefore, in my view it cannot be said that there is any goodwill as such in this country in respect of these products for the last over several years. If that is so, there is hardly any question of the plaintiffs suffering any damage even if injunction is not granted in their favour. As against this, if an injunction is granted, it will certainly cause considerable damage to the Defendants inasmuch as they have been manufacturing their brand since about a year or so. In fact, but for the recent liberalization of the policy of the Government with regard to import restrictions, the plaintiffs would not have ventured to seek these reliefs. They have some hope of their getting licence to manufacture. But that is not enough. As against this, the Defendants have already been manufacturing their products which have nothing to do with that of the plaintiffs.