Sep 10

Newsletter September 2010

Concept & Editing by: Dr. Niti Dewan

The Duel of the Energy Drinks Glucon D Vs. Gatorade

In a dispute (IA No. 3646/2010 in CS (OS) 514/2010) over tag lines of two energy drinks, Glucon D Isotonik (manufactured by Heinz India) and Gatorade (manufactured by PepsiCo) the Delhi High Court found in favour of Heinz India and dismissed the interim injunction application filed by Pepsi.

Pepsi’s Gatorade is marketed under the trademarked tagline, "Rehydrate, Replenish and Recharge". Pepsi took offence and instituted a suit when Heinz came out with a new product called Glucon D Isotonik which it marketed under the tag line “rehydrates fluids, replenishes vital salts and recharges glucose”.

PepsiCo alleged that the use of the above tagline by Heinz has resulted in infringement of PepsiCo's trade mark. The court however observed that “In the case of a sports drink or an energy drink such like words or expressions which are akin to the plaintiffs' mark are not only common but perhaps in a sense, necessary to describe, the characteristics or attributes of the product. Therefore, notwithstanding the fact that there is a registration in favour of the plaintiffs if, the expression which is registered or an expression similar to the one which is registered is used to describe the character of the product then, within the meaning of Section 30(2)(a) of the T.M. Act, 1999, the user will not be guilty of infringement.”

The Hon’ble Court also cited Lord Herschell in Reddaway v Banham

"The name of a person, or words forming part of the common stock of language, may become so far associated with the goods of a particular maker that it is capable of proof that the use of them by themselves without explanation or qualification by another manufacturer would deceive a purchaser into the belief that he was getting the goods of A. when he was really getting the goods of B. In a case of this description the mere proof by the plaintiff that the defendant was using a name, word, or device which he had adopted to distinguish his goods would not entitle him to any relief. He could only obtain it by proving further that the defendant was using it under such circumstances or in such manner as to put off his goods as the goods of the plaintiff. If he could succeed in proving this, I think he would, on well-established principles, be entitled to an injunction."

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