Bombay High Court Bars Use Of 'COX 5000' Mark, Says '5000' Belongs To Haywards 5000 And Imposes ₹10 Lakh Cost

The Bombay High Court has permanently restrained Madhya Pradhesh-based Jagpin Breweries Limited, a manufacturer of mass-market beer brands, from using the mark “COX 5000” or any other beer mark containing the numeral “5000”. The court held that the numeral is the “dominant, essential, and memorable feature” of the famous strong beer brand “HAYWARDS 5000”, now owned by Anheuser Busch InBev India Limited (AB InBev).A single bench of Justice Arif S Doctor also imposed costs of Rs 10 lakh on Jagpin Breweries for prolonged infringement and for repeatedly failing to participate in the proceedings. AB InBev, which is the Indian arm of the world's largest brewer, informed the court that it acquired the 'Haywards 5000' brand through an assignment from Shaw Wallace & Co. Ltd. The beer was first adopted in 1983 and its label was registered in 1985. In 2003, the Delhi High Court declared “HAYWARDS 5000” a well-known trademark and it continues to remain on the Registrar's list of well-known marks. The court recorded that Jagpin Breweries had begun selling beer under the name “COX 5000” in January 2005. A cease-and-desist notice was issued by AB InBev's predecessor, but after Jagpin denied the infringement, the present suit was filed in August 2006. During the court proceeding, Jagpin repeatedly failed to produce evidence to support its claims that it had used the mark since 2003 or that the numeral “5000” was common to the beer trade. After examining the record, the court held that AB InBev is the valid and undisputed proprietor of both the registered “HAYWARDS 5000” label mark and the “FIVE THOUSAND” word mark. It found that “5000” is the essential and prominent feature of the brand and therefore enjoys strong statutory protection. A visual comparison of the marks “HAYWARDS 5000” and “COX 5000”, the court said, showed deceptive similarity, particularly because both marks are used for identical goods. “The mere use of a different prefix, namely 'COX', does not in any manner dilute or negate the likelihood of confusion,” the court observed.On the claim of passing off, the court noted that “HAYWARDS 5000” has been used and widely promoted across India since 1983 and that the brand enjoys substantial goodwill and reputation. It held that the use of “COX 5000” for beer was likely to mislead consumers into believing that the products were connected with the Haywards 5000 brand. The court added, “The numeral part “5000” constitutes the essential and prominent feature of the Plaintiff's trade mark. Thus, any average consumer, with imperfect recollection, encountering the Defendants' product in the market is likely to be left in a state of wonderment or confusion as to the origin of the goods and to be led to believe that the same emanate from or have a connection with the Plaintiff.” Although the court declined to award Rs 5 lakh in damages sought in the suit due to lack of evidence quantifying financial loss, it held that AB InBev was entitled to a permanent injunction along with full costs. The court has now restrained Jagpin Breweries and its associates from manufacturing, selling, advertising or dealing in beer using “COX 5000”, any mark containing “5000”, or any mark deceptively similar to “HAYWARDS 5000” and “FIVE THOUSAND”. Jagpin has also been directed to pay costs of Rs 10 lakh to AB InBev.Case Title: Anheuser Busch InBev India Ltd. v. Jagpin Breweries Limited & Ors. Case Number: Commercial IP Suit No. 19/2006 For the Plaintiff: Advocates Ashutosh Kane, Amruta Thakur and Sumana Roychowdhary instructed by W. S. Kane & Co. Click Here To Read/Download Order

Bombay High Court Bars Use Of 'COX 5000' Mark, Says '5000' Belongs To Haywards 5000 And Imposes ₹10 Lakh Cost

Ayushi Shukla

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