Delhi High Court
Pepsico Inc & Anr vs Parasapar Developers Pvt Ltd & Ors on 4 October, 2016
$~06.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 607/2013
% judgment dated 4 th October, 2016
PEPSICO INC & ANR ..... Plaintiffs
Through : Mr.Kunal Mimani, Adv.
versus
PARASAPAR DEVELOPERS PVT LTD & ORS ..... Defendants
Through : Ms.Meenakshi Rawat, Adv. for
defendant no.2.
Mr.Nitin Bhardwaj, Adv. for defendant
no.3.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1.
Plaintiff has filed the present suit for permanent injunction restraining
violation and infringement of its rights in the trademark/name/label
AQUAFINA, infringement of copyright, rendition of accounts, delivery
up, etc. Plaintiff is aggrieved by the illegal adoption/use by the
defendants of an identical trademark/name/label AQUAPIYA.
2. Summons in the suit and notice in the application for stay were issued
on 5.4.2013. At the outset, counsel for the plaintiffs had stated that he
was not seeking ex parte injunction against the use of mark AQUA
PIYA for sale of bottled drinking water but he was seeking relief
against the use of label by the defendants as shown in para 3 of the
plaint. Consequently, the defendants were restrained from
selling/marketing packaged drinking water by using the label, however,
they were allowed to use the mark AQUAPIYA.
3. As per the plaint, plaintiffs are world-renowned manufacturers and
sellers of beverages under the trademarks PEPSI, MIRINDA, 7UP and
MOUNTAIN DEW, etc. The plaintiff adopted the mark AQUAFINA,
which is a unique word coined and adopted by the plaintiffs, and have
been exclusively using the said mark since the year 1994. The
mark/logo/label AQUAFINA is distinctive of the plaintiffs and their
products. The plaintiffs launched bottled water under the mark/label
AQUAFINA in India as early as in the year 1999. The trademark/logo/
label AQUAFINA has gained enormous recognition and popularity and
is considered as one of the premium brands for bottled drinking water.
The plaintiffs have applied for registration of the trademark/logo/ label
AQUAFINA in numerous countries. In India, mark/logo/label
AQUAFINA in the unique writing style, font and label, is a registered
trademark of the plaintiffs. Details of registrations have been extracted
in para 9 of the plaint. As per the plaintiffs, the trademark/logo/label
AQUAFINA used for packaged drinking water is highly distinctive and
is exclusively identified with the plaintiffs. The AQUAFINA product
is sold in two forms i.e. bottled form and bulk form. The
trademark/logo/label AQUAFINA of the plaintiffs has been regularly
protected by the plaintiffs against any infringement or third party use.
Few orders have been mentioned in para 14 of the plaint.
4. The defendants are engaged in the manufacturing and marketing of
packaged drinking water and are trading under the impugned
mark/logo/label AQUAPIYA.
5. The grievance of the plaintiffs is that the adoption of the
mark/logo/label AQUAPIYA by the defendants is completely illegal
and unlawful. The impugned mark/logo/label and style AQUAPIYA of
the defendants' is identical to the plaintiffs' well-known and registered
mark/logo/label AQUAFINA.
6. As per the plaintiffs, defendants are marketing and trading under the
trademark/logo/label AQUAPIYA, which is visually and structurally
identical to the plaintiffs' registered trademark/logo/label and
accordingly, results in violation of the plaintiffs' statutory and common
law rights. To show the similarity between the products of the
plaintiffs and the defendants, the plaintiffs have extracted the
mark/logo/label of the plaintiffs as well as of the defendants in their
plaint.
7. I have heard learned counsel for the parties. On the last date of
hearing, time was sought by the parties to settle the matter. Today, it is
informed to the court by the counsel for the parties that the parties have
arrived at an amicable settlement.
8. Learned counsel for the parties submit that they have instructions to
state that the present suit may be decreed in terms of prayers 'a' and 'b'
of para 34 of the plaint. Counsel for the plaintiffs also submits that the
plaintiffs are ready to give up their relief as claimed in prayer 'c' of the
plaint. Counsel for the defendants, on instructions, also undertakes to
the Court that the defendants shall destroy all the material bearing the
impugned mark/name/label AQUAPIYA, including bottles, packages,
labels, cups, lids, caps, covers, machines, moulds, dyes, bottles, name,
cartons, packaging material, name plates, publicity material like
pamphlets, fliers, hoardings, sign boards, stationery, etc. Counsel also
submits that defendant no.2 shall pay a sum of Rs.50,000/- in full and
final settlement to plaintiff no.2 towards cost and damages within a
period of four weeks from today.
9. Accordingly, present suit stands decreed in terms of prayers 'a' and 'b'
of the plaint. Relief claimed in prayer 'c' of the plaintiff is given up by
the plaintiff. Defendant no.2 shall pay Rs.50,000/- in full and final
settlement to plaintiff no.2 towards cost and damages within four weeks
from today. Defendants shall be bound by the undertaking given to
Court. Let a decree sheet be drawn up accordingly.
I.A. 5339/2013
10. Since the Local Commissioner has already been appointed, present
application stands disposed of.
I.A. 4722/2015 (Delay in re-filing WS)
11. Application stands disposed of in view of the order passed in the suit.
G.S.SISTANI, J
OCTOBER 04, 2016
//msr
