The Single Bench of the Delhi High Court in the case of Carlsberg Breweries A/S vs Tensberg Breweries Industries Pvt. Ltd. & Ors. consisting of Justice Navin Chawla, while deciding a case of trademark infringement, opined that Beer Bottles and Cans are not bought with minute scrutiny but in a more casual manner.
Facts
The plaintiff (Carlsberg Breweries A/S) started using the three-dimensional shape of a green opaque bottle with the word CARLSBERG embossed around the bottle on the lower side since 2007 in India and got the same registered in 2008. The same mark appears in various variants of its beer bearing the mark ‘CARLSBERG’. The defendants are also engaged in the business of manufacturing and selling of alcoholic and non-alcoholic beverages. The plaintiff asserted that the defendants adopted deceptively similar mark and are marketing its beer in deceptively similar bottle to cause confusion in the minds of the general consumers.
Contentions Made
Plaintiff: It was contended that the adoption of the trademark as also the trade dress by the defendant is an infringement of the plaintiff’s right and is dishonest, intended to encash on the goodwill and reputation of the plaintiff.
Defendant: It was contended that the plaintiff is guilty of misrepresentation and concealment of facts in the Plaint since the knowledge of the mark of the defendants was already with the plaintiff since 2019 vide order issued by the Department of Excise, State of Uttarakhand which gave the permission for sale of beer to defendant. It was also contended that the defendants have also been advertising its product on YouTube and Facebook, to the knowledge of the plaintiff.
Observations of the Court
The Bench noted that prima facie the mark of the plaintiff and the defendants appeared to be deceptively similar and had a phonetic similarity. It also noted that the shape of the bottle and the Can adopted by the defendants appeared to be deceptively similar to that of the plaintiff, which reflected the intention of the defendants to come as close to the plaintiff’s mark as possible. It further noted that since beer bottles and cans are not bought with minute scrutiny, the two marks and their trade dress are likely to deceive and confuse any unwary consumer.
The contention of the defendants that the said representation is due to a bona fide mistake, with the mark having been in use since the year 2018 in India, was not accepted. The order issued by the Department of Excise was also not accepted as a proof of its actual use. It emphasised that delay in prosecution of a claim of infringement, cannot be a ground to allow such infringement to continue, provided the user of the offending mark by the defendant is not honest and concurrent.
It was noted that the submissions regarding huge sales in India cannot be evidence of the knowledge of the plaintiff to such sale being made at a large scale by the defendants even prior to their incorporation. So, the balance of convenience was in favour of the plaintiff and against the defendants.
It was further noted that reliance of the defendants on various marks being registered with the suffix ‘BERG’, cannot help them unless they show that these marks are, in fact, being used for marketing the products.
Judgment
The Bench granted ad-interim injunction in favour of the plaintiff and against the defendants while making it clear that all the observations were only prima facie in nature and shall not in any manner influence this Court while considering this application again on their respective reply(ies) and rejoinders being filed by the parties. The case was listed on 19th October 2022.
Case: Carlsberg Breweries A/S vs Tensberg Breweries Industries Pvt. Ltd. & Ors.
Citation: CS(COMM) 646/2022
Bench: Justice Navin Chawla
Decided on: 16th September 2022
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