Delhi High Court: Navin Chawla, J. passed an ad interim injunction against Bikaner's Madhav Namkeens (‘defendant') restraining them from using similar logo/marks as that of Pepsico's Lays (‘plaintiff') as the plaintiffs were able to make out a good prima facie in its favour.
Plaintiff 1 is the registered proprietor of the ‘Sun Banner' device, which is registered under Class 29 and for the purposes of promoting the device mark, it has spent in excess of USD 1.2 Billion from the years 2008-2020. In India itself, the marketing and advertising expenses incurred by the plaintiffs for the promotion of the same has been in excess of Rs 855 Crore.
The plaintiffs are aggrieved by the adoption of a similar logo for allied goods, i.e.namkeens, by the defendant. The two marks are alleged to be deceptively similar and the intention of the defendant, as alleged, is only to ride on the reputation and goodwill generated by the plaintiffs. The pictorial description is as below:
The Court noted that these are goods that are bought off the shelf in normal grocery shops and therefore, there is a likelihood of confusion, especially keeping in view the unwary consumer. The balance of convenience is also in favour of the plaintiffs and against the defendants inasmuch as the plaintiffs have spent a huge amount in popularizing its device mark. The plaintiffs are also liable to suffer grave irreparable damages in the form of dilution of its mark by the use of a deceptively similar logo by the defendant.
The Court, thus, opined that that the plaintiffs have been able to make out a good prima facie in its favour.
The Court appointed Mr. Attul Bhuchar as a Local Commissioner to visit the premises of the defendant.
The Court gave following directions to the Local Commissioner:
The Local Commissioner shall take stock of and inventorise all products including labels, packing material, stationery, business cards, carry bags, price stickers, visiting cards, bill boards, brochures, promotional material, point of sale material, letter heads, cash memos, signage, sign posts, leaflets, cartons or any other item of whatsoever description and nature, bearing the impugned logo and/ or any other logos which may be identical or deceptively or confusingly similar to the LAY's ‘Sun Banner' device mark
The Local Commissioner shall also confiscate and release on superdaari to the defendant all products including labels, packing material, stationery, business cards, carry bags, price stickers, visiting cards, bill boards, brochures, promotional material, point of sale material, letter heads, cash memos, signage, sign posts, leaflets, cartons or any other item of whatsoever description and nature, bearing the impugned logo and/ or any other logo which may be identical or deceptively or confusingly similar to the LAY’s ‘Sun Banner' device mark.
The Local Commissioner shall sign each and every page of the ledgers/books of accounts or any similar records maintained by the defendant in the ordinary course of business from the time the aforementioned acts arose. He shall seize the hard disk of any computer and prepare print outs, if the defendant states that all accounts are being maintained and stored on the hard disk of the computer.
The Local Commissioner shall carry samples of the infringing material found at the premises of the defendant for submission before this Court as also photograph/videograph the proceedings, himself or with the assistance of the representatives of the plaintiffs, and prepare an investigative report. The Local Commissioner shall also be at liberty to seek police assistance.
[Pepsico Inc. v. Ramdev Industries, CS (COMM) 540/2022, decided on 05-08-2022]
Advocates who appeared in this case :
Mr. Darpan Wadhwa, Sr. Adv. with Mr. Manish K. Jha, Ms. Avni Sharma & Mr. Amer Vaid, Advocates, for the Plaintiff;
None, for the Defendant.
*Arunima Bose, Editorial Assistant has put this report together.