Delhi High Court
Comite Interprofessionnel Du Vin ... vs M/S Chinar Agro Fruit Products on 7 September, 2017
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07.09.2017
+ CS(COMM) 1194/2016
COMITE INTERPROFESSIONNEL DU VIN DE CHAMPAGNE
..... Plaintiff
versus
M/S CHINAR AGRO FRUIT PRODUCTS ..... Defendant
Advocates who appeared in the case:
For the Plaintiff: Ms. Taapsi Johri, Advocate.
For the Respondents: Nemo (Defendant is ex parte)
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
07.09.2017
SANJEEV SACHDEVA, J (ORAL)
CS(COMM) 1194/2016
1. The Plaintiff has filed this Suit for infringement of
Geographical Indication Under Section 22 of The Geographical
Indications Of Goods (Registration And Protection) Act, 1999
(hereinafter referred to as the GI Act) for restraining the Defendant
from committing, inter-alia, acts of infringement of the Plaintiff‟s
registered geographical indication "CHAMPAGNE" by using the
name CHAMPAGNE in respect of non-alcoholic sparkling drinks.
2. Defendant has been served with the summons of the suit. None
had appeared for the defendant on 30.01.2017. No Written Statement
was filed within the statutory period. By order dated 30.01.2017, the
right to file Written Statement was closed and the Defendant was
proceeded ex-parte. None appeared for the Defendant thereafter on
04.09.2017 and even none appears today.
3. Learned counsel for the plaintiff submits that the plaintiff is
willing to give up the reliefs of rendition of accounts and recovery of
damages.
4. Learned counsel for the plaintiff relies on Order VIII Rule 10 of
the Code Of Civil Procedure, 1908 (hereinafter referred to as the
CPC) as amended by The Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Act , 2015
(hereinafter referred to as the Commercial Courts Act) to contend that
as the defendant has failed to file Written Statement, it has made itself
liable for a Decree of permanent Injunction.
5. The present Suit is a Commercial dispute as defined under the
Commercial Courts Act. The provision of the CPC as amended by the
Commercial Courts Act are applicable.
6. Order VIII rule 10 as amended and applicable to Commercial
disputes reads as under:
"10. Procedure when party fails to present written
statement called for by Court.-- Where any party from
whom a written statement is required under Rule 1 or
Rule 9 fails to present the same within the time permitted
or fixed by the Court, as the case may be, the Court shall
pronounce judgment against him, or make such order in
relation to the suit as it thinks fit and on the
pronouncement of such judgment a decree shall be
drawn up. Provided further that no court shall make an
order to extend the time provided under Rule 1 of this
order for filing of the written statement."
7. In view of the fact that the defendant has failed to appear and
file the written statement, the Defendant is liable to be proceeded with
under order VIII rule 10 of CPC.
8. The Plaint is verified and supported by affidavit and statement
of truth of the Plaintiff affirming the contents of the plaint. The
Plaintiff has also filed an affidavit under order XI rule 6(3) of CPC
with regard to the electronic record.
9. By an ex-parte ad-interim order dated 01.09.2017, the
Defendant, its officers, servants, agents and representatives were
restrained from manufacturing, bottling, selling, offering for sale,
marketing, advertising, supplying, distributing, importing, exporting,
stocking and dealing in directly or indirectly in any manner
whatsoever in India or abroad any product under the name
„CHAMPAGNE‟ or by using any other expression or description
which is indicative, thereby suggesting that the product is originating
from the Champagne region of France. The said order was made
absolute by order dated 03.01.2017.
10. In terms of order dated 01.09.2016, the local commissioner
appointed to inspect the premises of the Defendant has submitted a
report indicating that infringing products and labels were found at the
premises of the Defendant. The infringing goods have been handed
over to the Defendant on Superdari.
11. In view of the above, I am of the opinion that, this is a fit case,
where instead of requiring the plaintiff to lead ex parte evidence,
judgment can be pronounced forthwith against the Defendant.
12. The Plaintiff has pleaded that the Plaintiff is a public service
body established by an Act of the French Parliament. It claims to be a
semi-governmental body with one of its principal objectives to protect
CHAMPAGNE trade all over the world. Though it is not involved in
the manufacture of any product, but its members produce
CHAMPAGNE. The Plaintiff‟s powers and duties inter alia include
the responsibility to manage and defend the rights in the geographical
indication "CHAMPAGNE" both in France and overseas.
13. It is contended that Mr. Vincent Perrin the Director General of
the Plaintiff has been authorized to institute the present suit and also
to sign and verify this plaint on behalf of the Plaintiff by the Board
Resolution dated December 4, 2014.
14. The geographical indication in issue is the name
"CHAMPAGNE" for a naturally sparkling wine produced only in the
Champagne region in France.
15. As per the plaintiff, CHAMPAGNE is a naturally sparkling
wine produced in the Champagne region of France by a process of
double fermentation from grapes grown there. The region in which the
CHAMPAGNE vineyards are found is almost 100 miles east of Paris
around Reims and Epernay. The uniqueness and distinct
characteristics of CHAMPAGNE wines are influenced by interplay of
the agro-climate conditions prevalent in the Champagne region of
France such as chalky and flinty soil, influence of the ocean, rainfall,
temperature, sunlight, etc. and the human skills involved in the
selection of grape varieties, the method of pruning, harvesting and
production of the CHAMPAGNE wines.
16. It is the plaintiff‟s case that the production of CHAMPAGNE
wines is governed by established rules covering all stages from the
growing of the grape varieties right up to the bottling of the
CHAMPAGNE wines. The wine so produced is and has, for a long
time, been known to the trade and the public in India as
CHAMPAGNE and, as such, has acquired enviable reputation.
17. In India, CHAMPAGNE is a registered geographical indication
under the provisions of the GI Act as per the following particulars:
Name of the Class Registration Date of Goods
Geographical No. Registration
Indication
CHAMPAGNE 33 140 September Wine
29, 2008
18. The registration is stated to be valid for a period of 10 (ten)
years up to September 29, 2018.
19. As per the Plaintiff, in terms of Sections 22(2) and 22(3) of the
GI Act, the Registrar of Geographical Indications has issued a
notification in Journal No. 44 (@ page 64, made available to the
public on January 11, 2012). As per this notification, CHAMPAGNE
has been afforded additional protection with effect from November
28, 2011. By virtue of such additional protection, the Plaintiff is
entitled to invoke and enforce its statutory rights against any use of
the geographical indication CHAMPAGNE absolutely, irrespective of
whether such use causes or is likely to cause confusion.
20. As per the Plaintiff, Plaintiff is registered proprietor of the
geographical indication "CHAMPAGNE" in a number of countries,
which includes all the 28 member states of the European Union, 16
member states of the African Intellectual Property Organization
(OAPI), Thailand, Panama, Indonesia, Dominican Republic etc. and
further, the appellation CHAMPAGNE is also protected by virtue of
bilateral agreements in certain countries.
21. In terms of Section 22 of GI act, use of the mark
CHAMPAGNE on a product not originating from such geographical
area, leading members of the trade and the public, into believing that
such product is CHAMPAGNE, when such product is not
CHAMPAGNE, would be a violation of the Plaintiff‟s statutory rights
in the registered Geographical Indication CHAMPAGNE.
22. It is the case of the Plaintiff that in November 2015, it became
aware of a company selling non-alcoholic sparkling drinks under the
name CHAMPAGNE. As per the label on the product bottle, it was
being manufactured, marketed and sold by the Defendant.
23. The Defendant is engaged in the manufacture and supply of
bottled beverages such as fruit beer, fruit juice, soft drinks and non-
alcoholic sparkling drinks under various brands, including the name
CHAMPAGNE.
24. The Defendant‟s products under the name CHAMPAGNE are
available in Delhi, Punjab and Jammu and Kashmir in various
flavours.
25. The impugned Label of the defendant depicting the use of the
word CHAMPAGNE is as under:
26. As per the Plaintiff, the Defendant has been using the
geographical indication CHAMPAGNE in respect of non-alcoholic
sparkling drinks and by using the name CHAMPAGNE on beverages
manufactured in India, the Defendant is misleading consumers into
buying its products under a false belief that they originate from the
Champagne region of France, when they do not. CHAMPAGNE
being a sparkling wine, when used in respect of a non-alcoholic
sparkling beverage is, therefore, bound to confuse and mislead the
consuming public into believing that the product is indeed
CHAMPAGNE.
27. As per the Plaintiff, the aforesaid acts of misrepresentation on
the part of the Defendant are not only dishonest, but are deliberate and
calculated with an oblique motive to trade upon and take undue
advantage of the goodwill and enviable reputation in the name
CHAMPAGNE and pass off its goods as those originating from the
Champagne region of France.
28. Furthermore, the Defendant is selling its drinks in bottles that
are virtually identical in shape, colour and configuration to those in
which CHAMPAGNE wines are sold. It is contended that by adoption
of essential features commonly used for wine bottles from
Champagne region of France and use of the word CHAMPAGNE the
Defendant has sought to create an impression that their product is
CHAMPAGNE and the same lead to an inference that these drinks
originate from the Champagne region of France and are either
CHAMPAGNE or associated with the same, which is clearly in
contravention of Section 22(1)(a) of the GI Act.
29. Section 22 of the GI Act reads as under:
"22. Infringement or registered geographical
indications.--(1) A registered geographical
indication is infringed by a person who, not being
an authorised user thereof,-- (a) uses such
geographical indication by any means in the
designations or presentation of goods that
indicates or suggests that such goods originate in
a geographical area other than the true place of
origin of such goods in a manner which misleads
the persons as to the geographical origin of such
goods; or
***** ***** *****
(3) Any person who is not an authorised user of
a geographical indication registered under this Act
in respect of the goods or any class or classes of
goods notified under sub-section (2), uses any
other geographical indication to such goods or
class or classes of goods not originating in the
place indicated by such other geographical
indication or uses such other geographical
indication to such goods or class or classes of
goods even indicating the true origin of such goods
or uses such other geographical indication to such
goods or class or classes of goods in translation of
the true place of origin or accompanied by
expression such as "kind", "style", "imitation" or
the like expression, shall infringe such registered
geographical indication.
***** ***** *****"
30. Section 67 of the GI Act reads as under:
"67. Relief in suit for infringement or for passing
off.--(1) The relief which a court may grant in any
suit for infringement or for passing off referred to
in section 66 includes injunction (subject to such
terms, if any, as the court thinks fit) and at the
option of the plaintiff, either damages or account
of profits, together with or without any order for
the delivery-up of the infringing labels and
indications for destruction or erasure.
(2) The order of injunction under sub-section
(1) may include an ex parte injunction or any
interlocutory order for any of the following
matters, namely:--
(a) for discovery of documents;
(b) preserving of infringing goods, documents
or other evidence which are related to the
subject-matter of the suit;
(c) restraining the defendant from disposing of
or dealing with his assets in a manner which
may adversely affect plaintiff's ability to
recover damages, costs or other pecuniary
remedies which may be finally awarded to
the plaintiff.
***** ***** *****"
31. In terms of Section 22 of the GI Act, as the Plaintiff has a
registered Geographical Indication for CHAMPAGNE, Plaintiff is
entitled to seek inter alia the relief of injunction as stipulated in
Section 67 of the GI Act.
32. As noticed above, the Defendant has neither appeared despite
service nor filed any Written Statement to controvert any of the
averment in the plaint which are supported by an affidavit and
statement of truth.
33. The acts of the Defendant, as noticed above, are bound to cause
damage to the vine growers in the Champagne region, wine making
co-operatives, wine brokers and agents, grape processing companies,
dealers and wine merchants of CHAMPAGNE wines and clearly
amounts to passing off and infringement of the Plaintiff‟s registered
Geographical Indication CHAMPAGNE.
34. The use of the name CHAMPAGNE by the Defendant on its
products, which do not originate from the CHAMPAGNE region,
amounts to infringement of the Plaintiff‟s registered Geographical
Indication within the meaning of Section 22(3) of the GI Act.
35. The protection afforded to an infringement of Geographical
Indication is absolute in terms of Section 67 of the Act. Absolute
protection is afforded because any infringement would be presumed to
cause damage to the goodwill and reputation of the producers in the
CHAMPAGNE region.
36. If the Defendant is allowed to continue the use of the word
CHAMPAGNE in respect of non-alcoholic sparkling drinks, it is also
likely to dilute the distinctive character of the well-known
Geographical Indication CHAMPAGNE as a high quality sparkling
wine originating exclusively from the Champagne region of France
and this would ultimately lead to the registered Geographical
Indication CHAMPAGNE becoming generic in India.
37. The Suit is accordingly decreed in favour of the Plaintiff and
against the Defendant and a decree for permanent injunction is passed
in favour of the Plaintiff and against the Defendant, thereby:
(i) restraining the Defendant by itself and its officers, servants,
agents and representatives from manufacturing, bottling,
selling, offering for sale, marketing, advertising, supplying,
distributing, importing, exporting, stocking and dealing in
directly or indirectly in any manner whatsoever in India or
abroad any product under the name CHAMPAGNE or by
using any other expression or description which is
indicative, suggestive or evocative of the Champagne wines
or which alludes or suggests a nexus or association with the
Champagne region of France, or from committing or doing
any other act so as to infringe the Plaintiff‟s registered
geographical indication, CHAMPAGNE; and
(ii) restraining the Defendant by itself and its officers, servants,
agents and representatives from indulging in all acts of
unfair competition, including passing off or engaging in any
other act that would dilute and debase the collective
goodwill and reputation enjoyed by the name
CHAMPAGNE as a unique wine originating from the
Champagne region of France;
38. Further, the Defendants are directed to deliver up all the goods,
including bottles, cartons, labels, wrappers, boxes, packaging, etc. that
were seized by the Local Commissioner and handed over to the
defendants on Superdari, to the authorized representative of the
Plaintiff for the purpose of destruction.
39. In view of the fact that learned counsel for the Plaintiff has
given up the relief of damages, the prayer for award of damages is
dismissed as withdrawn.
40. The suit is accordingly decreed in the above terms, with Costs
of the Suit to be taxed.
41. Decree sheet be drawn up.
SANJEEV SACHDEVA
SEPTEMBER 07, 2017
HJ
