CS(COMM) 464/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 29^th October, 2021

Pronounced on: 12^th November, 2021

+

CS(COMM) 464/2021 & I.A. 12323/2021

BACARDI AND COMPANY LIMITED

..... Plaintiff

Through:

Mr. Jayant Mehta, Sr. Advocate

with Mr. Anirudh Bakhru, Mr. Naqeeb

Nawab, Mr. Himanshu Deora, Mr. Raghav

Vig,

Ms.

Tejaswini

Chandrashekhar,

Advocates

versus

BAHETY OVERSEAS PRIVATE LIMITED & ORS.

..... Defendants

Through:

Mr. Pranay Sarkar, Mr. Rajtilak

Guha

Roy

&

Mr.

Jahangir

Ahmad,

Advocates for Defendants 1 & 2

Mr. Aditya Singla, Sr. Standing Counsel

(CBIC) with Mr. Utsav Vasudeva & Mr.

Sonali

Sharma,

Mr.

Vaibhav

Joshi,

Advocates for Defendant No.3

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N T

%

12.11.2021

1.

The plaintiff is a well-known manufacturer of alcoholic

beverages. It manufactures and sells rum-based beverages, mixed with

various fruit essences, under the name “BREEZER”.

2021:DHC:3575

CS(COMM) 464/2021

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2.

The defendants also manufacture fruit-based beverages, which

are, however, non-alcoholic. The defendants manufacture and clear

its beverages under the mark “FREEZ Mix”.

3.

The plaintiff alleges that the defendants’ product infringes the

plaintiff’s registered trademarks. The present suit, at the instance of

the plaintiff, therefore, seeks an injunction against the defendants’

product.

4.

The suit is presently pending before this court, awaiting

completion of pleadings. The defendants have neither filed any

written statement in response to the plaint nor any reply to IA

12323/2021, preferred by the plaintiff under Order XXXIX Rules 1

and 2 of the Code of Civil Procedure, 1908 (CPC), despite lapse of the

time granted therefor. Both sides were permitted to file written

submissions. I may note, however, that the written submissions of the

defendants, which runs into 41 pages, is actually a para-wise written

statement in response to the plaint. Be that as it may, I have heard

learned Counsel for the parties at length, and propose, by this

judgment, to dispose of IA 12323/2021.

5.

Mr. Jayant Mehta, learned Senior Counsel and Mr. Anirudh

Bakhru, learned Counsel, have been heard on this application on

behalf of the plaintiff. Mr. Pranay Sarkar, learned Counsel, argued on

behalf of Defendants 1 and 2.

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CS(COMM) 464/2021

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6.

The plaintiff possesses registrations for the word mark

“BREEZER” in Classes 32 and 33. The word mark and the shape

mark, both are registered, in favour of the plaintiff, under Classes 32

and 33 of the Schedule to the Trademarks Rules, 2017. The shape of

the bottle, in which the plaintiff manufactures and sells its product,

has also been granted registration as a trademark.

7.

Class 32 covers “beers and other non-alcoholic drinks and fruit

juices, syrups and preparations for making beverages included in

Class 32”, whereas Class 33 relates to “carbonated beverages

containing distilled spirits included in class 33”. The following shape

of the bottle in which the plaintiff sells its “BREEZER” product is

also registered as a shape mark under Classes 32 and 33:

8.

The plaintiff claims user since 27^th February, 2003. The

defendants do not dispute this claim.

9.

The label of the plaintiff, on its bottle, has undergone a change

with the passage of time, thus:

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CS(COMM) 464/2021

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During the 2000s:

2012-2014:

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After 2014:

10.

The defendants applied, before the Registrar of Trade Marks,

Delhi, on 19^th June, 2015, for registration of the following device

mark in Classes 32 and 33:

11.

Registration was however, refused. It does not appear that this

decision was challenged or carried further before any legal forum.

12.

On 10^th September, 2020, the plainti