Author: Sagar Singla, a student of Gitarattan International Business School, Delhi.
Case: Pepsi Co., Inc. & Others v/s Hindustan Coca Cola Ltd. & Another
Citation: 2003(27)PTC 305 (DEL)
Date of Decision: 01/09/2003
Bench: HONOURABLE MS. JUSTICE USHA MEHRA & HONOURABLE MR. JUSTICE O.P. DWIVEDI
Issues of the Case:
- Whether prima facie the respondents have disparaged the goods of the appellants.
- Whether the globe devises and the phrase “Yeh Dil Maange More” is copyright and in that case whether or not this copyright has been infringed via way of means of the respondent.
- Whether the essence of the curler coaster has been copied via way of means of the respondents and in that case the impact of the same.
Facts of the Case:
- The appellant is a registered owner of the mark ‘PEPSI’, ‘PEPSI COLA’, and ‘GLOBAL DEVICE’. It additionally claims to be the proprietor of the copyright withinside the words ‘Yeh DilMaange More’, that’s a hallmark of the appellants beneath Neath the Trade and merchandise, 1958 and they were suing the respondents, Hindustan Coca-Cola Ltd (Coca-Cola) over a series of advertisements carried out by the respondents.
- In some of the advertisements, a drink with the word PAPPI on its label with a mark similar to Pepsi’s globe mark was used in comparison to the respondent’s drink. In a commercial where a child was asked by the protagonist to name his favorite drink, to which the kid responds via way of means of announcing that his preferred drink is Pepsi which changed into apparent from his lip motion because it changed into muted.
- The child is then asked to perform a blind tasting of the two drinks and pick his favorite out of the two. The child points to one drink and says that he would prefer it because it is sweeter and says that he does not like other drinks. He likes the flavor of the opposite drink and says that it’s miles a more potent drink and must be fed on through grown-ups. After the lead actor opens the lid of both the bottles, it is revealed that the bottle which the child likes was the respondent’s drink while on the other it was written PAPPI on it which deceptively resembles PEPSI. The infant feels very embarrassed as he had in advance favored the Pepsi flavor and consequently maintains his palms on his hand as a rely on disappointment.
- The ads also contained the lead actor saying “Wrong choice baby” when the child initially states that Pepsi (bleeped out) is his favorite drink and uttering the phrase “Yeh DilMaange No More” which quantities to negative the reputation of Pepsi.
- The appellants alleged, that in another advertisement the respondents had copied a roller coaster commercial that they had launched earlier and sought to receive an injunction on the alleged copy. They additionally claimed that using the globe layout and the phrase “Yeh DilMaange No More” amounted to trademark infringement even as the character of the respondent’s adverts amounted to the disparaging of the appellant’s products.
- With regards to the primary issue, the Court discovered that the respondent’s classified ads did disparage the appellant’s products. In determining this, the Court regarded the subsequent factors:
- Intent of commercial
- Manner of the industrial
- The storyline of the industrial and the message sought to be conveyed through the industrial.
- They reasoned that even though the phrase Pepsi has been censored withinside the commercial, a viewer should make out the phrase from the motion of the actor’s mouth. Further, the usage of the phrase PAPPI and the image just like Pepsi’s globe, in reality, pointed to Pepsi as they have been the handiest cola logo withinside the marketplace that aligned with those descriptions. The Court reasoned that the advertisements amounted to disparage as they, in reality, despatched out the message that the appellant’s drink turned into an inferior one because it turned into candy and something handiest youngsters might drink as this affected the appellant’s marketplace of adolescent and person consumers. Further, the actor’s obvious embarrassment in locating out that the candy drink is what he had to start with claimed to love additionally suggests that being keen on the appellant’s drink is something to be ashamed of. It is due to this poor portrayal of the competitor that the advertisements have been now no longer befell as mere puffing and disparagement turned into held.
- With regards to the second issue, the Court dominated that the character of each word and the globe needed to be deduced from the way wherein they’re used. By this, each is an emblem of the appellant, and infringement, if any, must be measured accordingly. Here the Court dominated that there has been no infringement because the respondents had now no longer used both of those marks withinside the direction in their alternate and, in that, have been now no longer in contravention with phase 29(1) of the Trade Marks Act.
- With regards to the very last issue, the Court carried out the check laid down in R.G. Anand v. Deluxe Film and discovered that aside from minor gildings and changes, the essence of each of the advertisements turned into the same. Hence, the respondents had violated the copyright of the appellants. Therefore, the courtroom docket granted the injunction as regards the book and screening of this advertisement.
The courtroom docket hung on the grounds of disparagement and depreciating the goodwill of PepsiCo. Inc.’s merchandise below trademark safety was infringed with the aid of using the defendant. It is the authentic paintings of the appellant and, therefore, guard the marketing and marketing subject of the same. To popularise this copyright painting i.e. “Yeh DilMaange More” the appellant has spent vast quantity in this marketing and marketing subject. “Yeh DilMaange More” is a hit subject in India of the appellant.