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High Court Of Delhi
FRITCO-LAY INDIA - Appellant
Versus
UNCLE CHIPPS PRIVATE LIMITED - Respondent
First Appeal (OS) First Appeal (OS)
Decided On : 05/26/2000
PROMOTIONAL CAMPAIGN - TRADEMARK - [Trade and Merchandise Marks Act, 1958, Designs Act, Copyright Act, 1957] - The court discussed the promotional campaign involving the distribution of free collectibles and the alleged infringement of trademark and copyright. It highlighted the legal provisions related to deceptive similarity, passing off, and unfair competition, and their interpretations in the context of the case. The court emphasized the need for clear and cogent evidence to prove piracy and violation of copyright, and considered the class of purchasers and overall similarity as crucial factors in determining deceptive similarity. It also addressed the exclusivity of advertising/promotional campaign and the absence of unfair competition in the case.
Fact of the Case:
The case involved a dispute over a promotional campaign where the plaintiffs alleged infringement of trademark and copyright by the defendant's distribution of free collectibles. The court analyzed the nature of the promotional campaign, the allegations of piracy and passing off, and the phonetic and visual similarity between the marks TAZO and AMAZZO.
Finding of the Court:
The court found that the plaintiffs failed to establish a prima facie case of piracy, copying of their disc TAZO, passing off, or unfair competition by the defendant. It emphasized the absence of likelihood of confusion among the targeted customers and the dissimilarities between the promotional elements of the two commercial advertisements.
Issues: The key issues revolved around the deceptive similarity between the marks TAZO and AMAZZO, the exclusivity of the advertising/promotional campaign, and the allegations of unfair competition and passing off.
Ratio Decidendi: The court's decision was based on the interpretation of legal principles related to deceptive similarity, passing off, and unfair competition. It considered the class of purchasers, overall similarity, and the absence of likelihood of confusion as crucial factors in determining deceptive similarity. The court also emphasized the need for clear and cogent evidence to prove piracy and violation of copyright.
Final Decision: The appeal was dismissed, and no order as to costs was made. The court clarified that its observations would not prejudice the trial.
( 1 ) ADMIT. We heard Mr. P. Chidambaram, learned Senior Advocate for theappellant and Dr. A. M. Singhvi, learned senior advocate for the respondent and weretaken through the record.
( 2 ) THIS appeal by appellants (plaintiffs) is directed against the order dated 1 7/09/1999 passed by learned Single Judge of this Court on an applicationfiled under Order 39, Rules 1and 2 of the Code of Civil Procedure, 1908 (for shortcpc) holding that the respondent (defendant) was neither guilty of piracy nor copyingof the disc of appellants being distributed as a free collectible with their product "laysand Cheeto Chips", nor there was any unfair or dishonest competition on the part ofthe respondent, in distributing such discs with their product uncle Chipps : and onlyrestraining the respondent from distributing free collectibles, in the shape of rounddisc having groove/notch or grooves/notches.
( 3 ) THE focus of the present case is "advertising/promotional campaign" on T. V. under which the plaintiffs offered a TAZO disc inside each packet, with which childrencould play some games, claimed to be unique to them.
( 4 ) APPELLANTS (plaintiffs) filed a suit seeking a decree of permanent injunctionrestraining the respondent, their subsidiaries, associate companies, affiliates, agents,principal officers and servants or anyone else acting for and on their behalf fromdistributing free collectibles with their products in the form of "circular discs with/without grooves" or any other name which is identical or deceptively similar to theplaintiffs patented disc TAZO , thereby amounting to passing offsuch discs as thatof the plaintiffs or as connected with the plaintiffs resulting in dilution of their brandvalue in the circular discs,and seeking further injunction restraining the defendantsfrom using such discs, which were substantial reproduction or a colourable imitationof TAZO discs, thereby amounting to infringement of the plaintiffs copyright or in anyother manner unfairly competing with the plaintiffs by illegally appropriating theplaintiffs marketing methods.
( 5 ) IN the suit appellant No. 1 claimed to be a subsidiary of Pepsi Co India Holdingsltd which in turn is a subsidiary of appellant No. 2 Pepsico Inc. , a corporationregistered under the laws of the United States of America: they are engaged in themanufacture, marketing and trade of beverages, snack products etc. , includingpotato chips sold under brand names "lays and Cheetos" and had launched apromotional campaign by giving "free collectibles" in the form of round patenteddiscs with/without grooves marked TAZO with each packet of chips. These discstazo were registered under U. S. Patent No. 5672087, dated 30/09/1987, the drawings of which were reproduced in the patent while recording it as aninvention. These discs are circular and have grooves: one big groove can be utilisedfor making other circular disc fly; it is 4. 5 cms in diameter and 1. 0 mm thick. Thesediscs can be used for playing certain games, two of which are: (a) connect n Fly;and (b) Stack, Whack and Win. Under the first game the two Tazos (discs) areconnected in the special bigger grooves made for the purpose. like a catapult andwhen one of the TAZO is pulled the other TAZO could fly. While in the other game apile of TAZO is made with pictures face down with player taking turns to whack thepile with the striker. Characters are printed on one side and trade mark printed on theother side. These are introduced in the market in series (for short TAZO discs ).
( 6 ) THE campaign involved giving of a free TAZO disc which was kept inside everypacket of snack food. These were having various cartoon figures and comic characterswhich were favourites of kids. Extensive advertisement and publicity was mainlydirected at young children so as to induce them to collect the TAZO discs whichwould lead to boost the sales of the plaintiffs products.
( 7 ) IT was further pleaded that this type of promotional campaign
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