Back
2024 Supreme(Del) 37
IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M. Singh, J.
Allied Blenders @ Distillers Private Limited - Appellant
Versus
Hermes Distillery Private Limited - Respondent
CS(COMM) 274 of 2021 and I.As. 7301 of 2021 & 4441 of 2023
Decided On : 15-01-2024
Important Points
Subject
Intellectual Property - Trade Marks
Act Referred
COMPANIES ACT : S.18
COPYRIGHT ACT : S.2(c)
TRADE MARKS ACT : S.134, S.135, S.21
Headnote
(B) Passing Off - Elements of passing off include misrepresentation leading to confusion - The test is of overall similarity, not identity, and considers the perspective of an average consumer with imperfect recollection. (Paras 36, 49)
Facts of the case:
The Plaintiff alleges that the Defendant's label is deceptively similar to its registered mark 'OFFICER'S CHOICE', which has been in use since 1988 and is one of the largest selling whiskies globally. The Defendant launched 'PEACE MAKER' in 2019, prompting the Plaintiff to file for an injunction. (Paras 6, 14)
Findings of Court:
The Court finds that the labels exhibit significant similarities that could mislead consumers, thus granting an interim injunction against the Defendant's use of the 'PEACE MAKER' label. (Paras 62, 64)
Issues: The main issues include whether the Defendant's label infringes the Plaintiff's trade mark and whether there is a likelihood of confusion among consumers. (Paras 36, 62)
Ratio Decidendi: The Court emphasizes the importance of overall similarity in labels and the likelihood of confusion among consumers, ruling that the Defendant's label is likely to cause confusion with the Plaintiff's established mark. (Paras 36, 49)
Result: The Defendant is restrained from using the 'PEACE MAKER' label pending the final disposal of the suit.
Mr. Pravin Anand, Mr. Shrawan Chopra and Mr. Achyut Tewari Advocates, for the Plaintiff.
Mr. J. Sai Deepak, Mr. N. K. Bhardwaj, Ms. Anju Agrawal, Mr. Bikash Ghorai and Mr. Avinash Kumar Sharma, Advocates, for the Defendant.
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been held through hybrid mode.
I.A. 4441/2023 (under Section 151 CPC)
2. This is an application moved by the Plaintiff-Allied Blenders seeking to record its change of name from M/s Allied Blenders and Distillers Pvt. Ltd. to Allied Blenders and Distillers Ltd. The Certificate of Incorporation issued under Section 18 of the Companies Act, 2013 on 8th June, 2022 has been attached with the application. For the reasons stated in the application, and no objections from the Defendant, the change of name is allowed.
3. The amended memo of parties is taken on record.
4. Application is disposed of.
I.A. 7301/2021 (u/O. XXXIX Rule 1&2 CPC)
Background
5. The Plaintiff- Allied Blenders and Distillers Private Limited has filed the present suit under Section 134 and 135 of the Trade Marks Act, 1999 seeking an injunction against the Defendant- Hermes Distillery Pvt. Ltd.'s labels.
6. The Plaintiff's case is that it is one of leading manufacturer and sellers of alcoholic beverages under various trademarks, namely, `OFFICER'S CHOICE', `OFFICER'S CHOICE BLUE', `OFFICER'S CHOICE BLACK', `CLASS VODKA', etc. The subject matter of the present suit concerns the Plaintiff's product `OFFICER'S CHOICE' and its labels, which have evolved over the years.
7. The products under the mark `OFFICER'S CHOICE' were launched by the Plaintiff in 1988 and it is claimed to be one of the largest selling whiskies in the world. It is the Plaintiff's case that in July, 2014, `OFFICER'S CHOICE' was declared as the largest selling whisky in the world. The mark `OFFICER'S CHOICE', as a word mark, is registered by the Plaintiff since 1988. The said mark has been used since 1988 by the Plaintiff's predecessor and was officially transferred to the Plaintiff in 1991. Following a business demerger and transfer process approved by the High Court of Bombay in 2007, the Plaintiff became the proprietor of mark `OFFICER'S CHOICE' and its variants in several categories.
8. The Plaintiff is the registered proprietor of the trade mark `OFFICER'S CHOICE' in various classes. The details of the Plaintiff's marks are available in paragraph 7 of the plaint. However, for the purposes of the present suit, the relevant trade mark registration for devices/labels used for the `OFFICER'S CHOICE' product are extracted below:
| Trade Mark Application No. 2542942 | |
| Trade Mark Application No. 3238296 | |
| Trade Mark Application No. 2739309 |
9. Some of the other registrations are mentioned below:
10. The sales of `OFFICER'S CHOICE' whiskey amount to approximately 30.10 million cases, each consisting of 9 liters, indicating a very high volume of sales. The Plaintiff claims that the Plaintiff's `OFFICER'S CHOICE' brand also has notable export sales, with hundreds of thousands to over a million cases exported annually from 2006-07 to 2019-20. Further, from 1994-2020, the Plaintiff claims to have expended between Rs. 14.90 crores to Rs. 286.15 crores for sales promotion. In 2019-2020, the Plaintiff expended Rs. 52.72 crores in promotional activities. Promotional strategies have included sponsoring the Indian Cricket Team, advertisements in magazines and television, and the use of hoardings, posters, and other visual materials.
11. According to the plaint, the Plaintiff has been using the trade mark `OFFICER'S CHOICE' in a distinctive design, color scheme, layout, and get- up as its label, which has become uniquely associated with its products. The white base, red font style, and lettering of the logo are considered original artistic work under Section 2(c) of the Copyright Act, 1957. In May 2009, the Plaintiff claims to have updated the `OFFICER'S CHOICE' label to align with changing consumer attitudes and tastes, giving their whisky products a fresh ap
