The Delhi High Court recently granted an ex parte injunction in favour of Pepsico against a liquor company allegedly using their mark i.e. Mirinda.
A bench of Justice Jyoti Singh observed that Pepsico had successfully made out a prima facie case for an ad-interim injunction since the balance of convenience lies in their favour. :
"This Court is of the view that Plaintiffs have made out a prima facie case for grant of ex parte ad-interim injunction. Balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted."
The plaintiff – Pepsico argued stated that it is a corporation duly incorporated under the laws of the State of North Carolina, USA and is one of the world's premier consumer products Companies engaged in the business of manufacturing and distributing non-alcoholic beverages, packaged and aerated waters and snack foods.
It was argued that internationally the MIRINDA mark was first adopted in 1959 in Spain and has been used by Pepsico and/or its predecessors for the last more than 60 years. In India, the earliest registration for the said marks dates back to 1997, though the products under the MIRINDA marks have been available since 1996.
Further, it was argued that MIRINDA marks have either been registered or applications have been made for registrations by Plaintiff No.1 or its subsidiaries in about 190 countries of the world. Details of registrations have been given in the plaint and it is stated that the registrations are valid and subsisting.
It was stated that the total net revenue earned from the sale of products under MIRINDA marks for the period 2013 till December 2021 in India has been in excess of INR 2500 Crores. Plaintiffs' products under the MIRINDA marks have been widely advertised in India through various media and the advertising and promotional expenses from 2013 to December, 2021 have been in excess of INR 157 Crores. Extensive advertisements and promotion campaigns have been made on dedicated social media platforms such as Facebook, Youtube, Twitter and Instagram.
"Several celebrities have endorsed the products bearing the MIRINDA marks in India. Plaintiffs have been actively enforcing their rights under the MIRINDA marks in India by instituting legal actions, issuing cease and desist letters, filing oppositions and have received favourable results," it was argued by the plaintiff.
In December the plaintiff came to know that defendant No.2 applied for registration of the mark "Continental Mirinda Beer" in his name, with the user claim from 06.07.2015. On further investigation, it was found that Defendant No. 2 who is the Director of Defendant No.1 is currently using the Hindi transliteration of the mark MIRINDA i.e., in relation to country-made liquor and has also filed an application seeking registration of the mark before the Trade Marks Registry, which was abandoned subsequently.
Plaintiff argued before the court that MIRINDA marks are the registered marks of Plaintiff No.1 and use of the impugned mark or its deceptive variations by the Defendants in relation to their products/business activities amounts to infringement of the statutory rights of Plaintiff No.1 under Section 29 of the Trade Marks Act, 1999.
"The unauthorized adoption and use is bound to cause confusion and association amongst the public that the products sold under the impugned mark are those of the Plaintiffs. It is clear that Defendants intend to take unfair advantage of the immense goodwill and reputation of Plaintiff No.1's MIRINDA marks."
In the end, it was argued that the use of the mark by the defendants is inherent in it a misrepresentation to the consumers that the defendants' products owe their origin to or are licensed by the plaintiffs and is calculated to cause damage to the plaintiffs' common law rights and amounts to passing off.
In view of the above, the Court found this to be a fit case for grant of ex parte ad interim injunction and restrained the defendants from using the mark any further.
Case Title: PEPSICO INC. & ANR. versus JAGPIN BREWERIES LIMITED & ANR.
Citation: 2022 LiveLaw (Del) 437