The Coca Cola Company v. Narsing Rao & Ors

RAJIV SAHAI ENDLAW, J. MARCH 06, 2014. sk

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 6th March, 2014. + CS (OS) 1493/2013 THE COCA COLA COMPANY & ANR .......Plaintiffs Through: Ms. Ekta Sarin Versus NARSING RAO & ORS .....Defendants Through: None CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit ( on 29th July, 2013) claiming permanent injunction restraining the defendant from manufacturing or authorising the manufacture, selling or offering for sale, marketing, advertising, promoting, displaying or in any other manner whatsoever using the offending trademarks KELBY and/or KELBY Club Soda (label) and/or KELBY bottled water (label) and/or the offending bottle shape and/or any other mark which is deceptively or confusingly similar to the registered trademarks KINLEY Club Soda (label), KINLEY (label), KINLEY (word) and DANUBE Bottle shape of the Plaintiff No. 1, as a trademark or part of a trademark, trade name or part of a trade name or in any other manner whatsoever so as to infringe the Plaintiff No. 1's registered trademarks, and for ancillary reliefs of delivery, damages etc. 2. The case of the plaintiff in the plaint is: (I) that the Plaintiff No. 1 is one of the largest soft drinks companies in the world with operations in more than 200 countries. It is the owner and registered proprietor of several well- known trademarks inter alia KINLEY, COCA COLA, COKE, DIET COKE, MINUTE MAID, SPRITE, FANTA, LIMCA, MAAZA, POWERADE, SUNFILL, THUMS UP, GOLD SPOT, CRUSH and RIM ZIM to name a few of them; (II) that the Plaintiff No. 2 Hindustan Coca Cola Beverage Pvt. Ltd. is an authorized bottler of Plaintiff No. 1, and is authorized to prepare, package, sell and distribute specified beverages under certain trademarks of Plaintiff no. 1 in Authorized Containers under the terms and conditions stipulated in Bottler's Agreement; (III) that though the Plaintiff No. 1 is headquartered in Atlanta, Georgia, United States of America, it has local operations in over 200 countries of the world. Due to its immense reach, the various trademarks of the Plaintiff No. 1have acquired immense reputation and goodwill in various countries of the world, including India; (IV) that one of the most popular brands of the Plaintiff is KINLEY. The KINLEY brand is used by the Plaintiff's for two types of drinks, (a) high quality bottled water and (b) carbonated water with a wide array of variants: tonic, bitter lemon, club soda and fruit flavoured; (V) that the distinctive DANUBE BOTTLE shape is used for KINLEY bottled water. The Plaintiff No. 1 first adopted the distinctive DANUBE BOTTLE shape in the year 2006 in Turkey for use in relation to bottled drinking water sold under its well- known trademark KINLEY. In India, the Plaintiff's commenced used of the DANUBE BOTTLE in the year 2008; (VI) that the Plaintiffs have since the launch of the DANUBE BOTTLE used the same continuously and extensively, and as a result the DANUBE BOTTLE shape, has acquired immense reputation and goodwill and the consumers associate the said distinctive DANUBE BOTTLE shape with the Plaintiffs and the Plaintiffs brand KINLEY; (VII) that the Plaintiffs also use the brand name KINLEY in relation to carbonated water and the same is marketed and sold in India as KINLEY CLUB SODA since 1998; (VIII) that sometime in and around March, 2012, the plaintiffs came across the Defendant Nos. 1 and 2 Mr. Venkatesh's product namely carbonated water under the offending mark KELBY Club Soda; the defendant No.3 Mohd. Naseer trading as M/s Seema Aqua Minerals was found to be processing the water which was filled by defendants No.1 & 2 trading as M/s Hind marketing and M/s Sridevi Marketing and defendant No.4 Mr. B. Surendar Reddy sole proprietor of M/s Sri Balaji Pet Polymers was supplying the infringing bottles; (IX) that the Defendant Nos. 1 to 3 apart from using the mark KELBY which is confusingly and deceptively similar to the Plaintiff's well known trademark, KINLEY, have also copied the