Delhi High Court Restrains Parle From Using ‘For The Bold’ Tagline As Predominant Part Of Advertising ‘B Fizz’ Drink In Suit By PepsiCo

The Delhi High Court has restrained Parle from using the tagline “For The Bold” as predominant part of any advertising campaign for its “B Fizz” beverage in a trademark infringement suit filed by multinational chain PepsiCo. Justice C Hari Shankar passed the interim order in PepsiCo’s suit seeking a permanent injunction against Parle from using the tagline “For The Bold”. The suit is filed by PepsiCo Inc. and PepsiCo India Holdings Private Limited. It was PepsiCo’s case that it holds a valid and subsisting trade mark registration for the said tagline. An application seeking interlocutory injunction was filed along with the suit. Parle, on the other hand, also filed an application for grant of leave to file a rectification petition challenging the registration of PepsiCo’s “For The Bold” trademark.In an order passed on August 18, Justice Shankar also restrained Parle from airing or continuing its Facebook advertisements regarding the B Fizz drink. The court said that in case the advertisements in question are continuing, they shall be immediately taken down and discontinued.However, the court rejected the prayer for interlocutory injunction against the use of “For The Bold” tagline by Parle as part of the label on its “B Fizz” bottle. It added Parle shall be restrained, pending disposal of the suit, from altering the said label on its beverage bottle without prior approval of the court.“In the event of any fresh advertising campaign, or advertisement, by Parle, which uses “For The Bold” as its dominant/predominant part, PepsiCo would be entitled to move this Court by means of an interlocutory application in the present suit, seeking injunctive reliefs,” the court said Justice Shankar also directed Parle to place on record the entire returns earned by the sales of “B Fizz” beverage, using the label containing “For The Bold” tagline. Parle would continue to file, every two months, duly certified figures of returns of sales from its “B Fizz” beverage, during the pendency of the suit, the court added. In the suit, PepsiCo said that it started using the “For The Bold” tagline in relation to its DORITOS tortilla chips produced in 2013 internationally and in India since 2015. It submitted that owing to extensive and continuous use, the tagline “For The Bold” is inalienably identified with its DORITOS tortilla chips.As per PepsiCo, it learnt in November 2020 that Parle had launched a malt flavoured fruit juice based drink in India by the name B FIZZ using “For The Bold” tagline in its drink’s label. PepsiCo was also aggrieved by Parle’s application seeking registration of the tagline “Be The Fizz! For The Bold!” in September, 2020, as a trademark on “proposed to be used” basis.Justice Shankar was unable to accept PepsiCo’s submission that the use of the impugned label by Parle as well as “For The Bold!” tagline as its part was infringing in nature within the meaning of Section 29(2) of the Trade Marks Act.“The “Be The Fizz! For The Bold!” tagline is relegated to the border of the label, with “Be The Fizz!” in the upper half and “For The Bold!” written upside down in the lower half. “For The Bold!”, therefore, is only a part – and a somewhat insignificant one – of the impugned label of Parle. Even if it is treated as part of the “Be The Fizz! For The Bold!” tagline, it nonetheless constitutes only the latter half of the tagline,” the court said.However, it added that no benefit of doubt can be extended to Parle, apropos the manner in which “For The Bold” is used by it in its advertising campaign. The court said that the mark “For The Bold” as used by Parle in the advertisements on Facebook social media webpage was unquestionably infringing in nature.“As used in the above Facebook advertisements, therefore, “For The Bold” constitutes an independent mark, and not merely an insignificant part of a larger label, as on the surface of the “B Fizz” bottle. As an independent mark, it is identical to the registered “For The Bold” word mark of PepsiCo. The two marks being identical, Section 29(2)(c) read with Section 29(3) would apply, and the Court is bound to presume the likelihood of confusion as a result of the use of the “For The Bold” mark by Parle. The use, by Parle, of “For The Bold” as part of its advertising campaign for its “B Fizz” beverage is, therefore, unquestionably infringing in nature,” the court said.Justice Shankar also said while he was not inclined to injunct the use of “For The Bold” tagline by Parle in its present form as part of the label on B Fizz bottle, however, the manner in the tagline was used in advertising campaign on Facebook had to be injuncted.Furthermore, the court held that no sustainable case of passing off was made out by Parle against PepsiCo. It observed that there was no likelihood of confusion between PepsiCo’s registered “For The Bold” mark and Parle’s “Be The Fizz! For The Bold!” tagline. “…the impugned label of the “B Fizz!” product of Parle is sufficiently distinct and different ...

Delhi High Court Restrains Parle From Using ‘For The Bold’ Tagline As Predominant Part Of Advertising ‘B Fizz’ Drink In Suit By PepsiCo

Nupur Thapliyal

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