Bombay High Court
Parle Agro Pvt. Ltd vs S.G. Star Drinks Pvt. Ltd on 28 September, 2021
Author: G.S. Patel
Bench: G.S. Patel
18-IAL-16726-2021 IN COMIPL-16721-2021 WITH CPCDL-21859-2021 IN IAL-16726- 2021.DOC Shephali IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION INTERIM APPLICATION (L) NO. 16726 OF 2021 IN COMMERCIAL IP SUIT (L) NO. 16721 OF 2021 Parle Agro Pvt Ltd ...Plaintiffs Versus SG Star Drinks Pvt Ltd ...Defendants WITH COMM DIVISION CONTEMPT PETITION (L) NO. 21859 OF 2021 IN INTERIM APPLICATION (L) NO. 16726 OF 2021 Parle Agro Pvt Ltd ...Plaintiffs Versus Bhupendra Singh & Anr (Director of SG Star ...Defendants Drinks Pvt Ltd) Mr Hiren Kamod, with Raina Gajria, i/b Gajria & Co, for the SHEPHALI SANJAY Plaintiffs. MORMARE Mr Sankalp Anantwar, i/b SMA Law Partners, for the Defendants. Mr SK Dhekale, OSD, Court Receiver, is present. Digitally signed by SHEPHALI SANJAY MORMARE Date: 2021.09.29 10:32:47 +0530 CORAM: G.S. PATEL, J DATED: 28th September 2021 PC:- Page 1 of 6 28th September 2021 18-IAL-16726-2021 IN COMIPL-16721-2021 WITH CPCDL-21859-2021 IN IAL-16726- 2021.DOC 1.
Mr Kamod tenders draft amendment. This is taken on record and marked "K1" for identification with today's date. The amendments are permitted. Amendments are to be carried out within a week without need of reverification.
2. The Clause XIV Petition is made absolute since the Defendants are served.
3. This is the second such case in two days'. Like the previous case, this Defendant does not believe that orders of the Court have any meaning and that can continue to flout them at will. It will learn that it is entirely wrong. The 10th August 2021 order granted an ex parte ad-interim injunction against the Defendants for using a clearly infringing mark FRISS for an apple flavoured drink. I held that it was prima facie an infringement of the Plaintiffs' mark APPY FIZZ.
4. But the order was not only about the marks FIZZ vs FRISS. There was a specific finding that the Plaintiff had registered to it as a mark a unique black bottle with a yellow-gold neck-band. There was an injunction in respect of that too.
5. When the Court Receiver went to execute the order of 10th August 2021, it came across another infringement. For, by this time, the Plaintiffs had introduced a variant, a malt-flavoured drink with the mark "B" and the tag line "Be The FIZZ!" and "For The Bold!". Simultaneously, the Defendant has come out with a Page 2 of 6 28th September 2021 18-IAL-16726-2021 IN COMIPL-16721-2021 WITH CPCDL-21859-2021 IN IAL-16726- 2021.DOC competing mark "FIRANGI", also a malt-flavoured beverage. Images of the rival bottles are appended this order.
6. This order is not about the marks. The Plaintiff's new product is in a identical bottle. Only the colour has changed from black-and-gold to red-and-gold. The Defendant has copied the same bottle and the same colour scheme.
7. The Defendant is mistaken if it thinks that it can get away with this. First, the Defendant is in direct violation of 10th August 2021 order and is possibly in contempt of it. Mr Kamod tells me that there is a separate Contempt Petition order he filed. I will take that up independently. Second, and to put the matter beyond all controversy, I am reiterating the earlier injunction and granting a further injunction now.
8. The Defendant is not to use the impugned bottle or any other bottle with a shape that is deceptively or confusingly similar to the shape of the Plaintiffs' bottle. It is not to use a colour combination or get up that closely resembles the Plaintiffs' get up. The same Receiver and Additional Receiver will continue and will execute this fresh order against the malt-flavoured beverage bottles as well.
9. The Court Receiver notes in paragraph 11 of his report that the Defendant has 50 cartons or boxes. Each box contains 40 bottles of the presently impugned product, that is the red product. The Defendant did not allow these to be seized saying that the products had expired and would be destroyed. I am not concerned with the Page 3 of 6 28th September 2021 18-IAL-16726-2021 IN COMIPL-16721-2021 WITH CPCDL-21859-2021 IN IAL-16726- 2021.DOC shelf-life of the contents of the bottle. It is not the product over which the Plaintiff claims a monopoly. The Defendant is free to make any kind of beverage that it wants. It cannot use a mark that is similar to the Plaintiffs' mark. It cannot use a layout that resembles the Plaintiffs' layout and artwork. It cannot use a bottle that is confusingly or deceptively similar to the Plaintiffs' bottle.
10. There will also be an injunction now on the cause of action in passing off, as I have made the Clause XIV Petition absolute.
11. I suspect that even this will not be enough. The Defendants must learn that Court orders are not suggestions. They are to be obeyed in every single respect. Therefore, the Court Receiver will now take all the goods seized under the previous order and the goods to be seized under this order and remove them from the Defendants' premises and place them in premises to be identified by the Plaintiffs. This is initially at the Plaintiffs' own cost but the Defendants are put to notice that the Plaintiffs will recover these costs with interest from the Defendants at any stage of the proceedings including interim proceedings.
12. These are also commercial matters. This means that they are governed by the provisions of the Commercial Courts Act 2015. That in turn means that the provisions of Section 35 of the Civil Procedure Code as amended by the Commercial Courts Act will apply. Costs can be awarded at any stage of the proceedings. One of the factors in awarding costs that a Court will bear in mind is whether a defence, reply or filing is frivolous, mischievous or Page 4 of 6 28th September 2021 18-IAL-16726-2021 IN COMIPL-16721-2021 WITH CPCDL-21859-2021 IN IAL-16726- 2021.DOC vexatious and has resulted in wasting the Court's time. The Defendant is therefore put to notice that if it does not have a legitimate defence to this action, there will be a very significant order of costs against it. In a commercial matter it will not do to offer to pay costs in a few thousand rupees. I trust my meaning is abundantly clear.
13. Affidavit in Reply is to be filed and served on or before 15th November 2021. Affidavit in Rejoinder is to be filed and served on or before 22nd December 2021.
14. List the Interim Application for hearing and final disposal on 20th February 2022.
15. Liberty to the Plaintiffs to apply if after a Court Receiver executes this order it is found that there are even more offending products.
16. Earlier order to continue.
17. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 5 of 6 28th September 2021 18-IAL-16726-2021 IN COMIPL-16721-2021 WITH CPCDL-21859-2021 IN IAL-16726- 2021.DOC Page 6 of 6 28th September 2021