ebl project
TRANSCRIPT
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Report on
IPR Court Case
(Trademark Infringement)
Coca Cola Company
Vs
Bisleri International Ltd.
Presented by:
Shruti Mishra (12)
Suchismita Bhar (15)
Kanika Bajaj (17)
Sonu Rathore ( 49 )
Pratiek Sahu (39 )Gautam Gugnani ( 63 )
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Index
1. Acknowledgement««««««««««««« 32. Indian Contract Act, 1872««««««««««. 43. Essential Elements of a Contract «««««««. 44. Intellectual Property Law (IPR) «««««««... 7
i. Types of IPR ««««««««« 8ii. Advantages of IPR ««««««« 11
iii. IPR in India «««««««««.. 11
5. Brief Explanation on Trademark «««««««. 136. Discussion on
Trademark Infringement , Passing Off «««««.. 157. Case Related to IPR Infringement of Trademark«.. 18
i. Background of the companies«««. 19ii. Court Case ««««««««««.. 21
iii. Judgement of the Case...«««««. 278. Student Analysis and Academic learning ««««. 289. References««««««««««««««««. 30
Acknowledgement
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We all give our heartiest thanks to Ms. Monica Suri for giving us the
opportunity to work on this project and giving us suggestions and guidance todeliver the work properly. It is a great learning for us to work in a team.
We are very thankful to the staff of the Amity library for the help and co-operation extended during my study and search for materials in the precinctsof the library.
Last but not the least, we are very thankful to my parents and to all my friendsfor their constant source of encouragement and motivation to prepare the casesuccessfully.
THE INDIAN CONTR ACT ACT, 1872
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iii. is not disqualified from contracting by any law to which he issubject
4. Free consent -According to Section 13, " two or more persons are saidto be consented when they agree upon the same thing in the same sense(Consensus-ad-idem).A consent is said to be free when it not caused bycoercion or undue influence or fraud or misrepresentation or mistake.
Elements Vitiating free Consent:
i. Coersion (Section 15): "Coercion" is the committing, or threatening to commit, any act forbidden by the Indian PenalCode, or the unlawful detaining, or threatening to detain, any
property, to the prejudice of any person whatever, with theintention of causing any person to enter into an agreement.
ii. Undue influence (Section 16): "Where a person who is in a position to dominate the will of another enters into a contract withhim and the transaction appears on the face of it, or on theevidence, to be unconscionable, the burden of proving that suchcontract was not induced by undue influence shall lie upon the
person in the position to dominate the will of the other."
iii. Fraud (Section 17): "Fraud" means and includes any of thefollowing acts committed by a party to a contract, or with hisconnivance, or by his agent, with intent to deceive another party
thereto of his agent, or to induce him to enter into the contract.i. The suggestion, as to a fact, of that which is not true by one
who does not believe it to be true.ii. The active concealment of a fact by one having knowledge
of belief of the fact.iii. A promise made without any intention of performing
iv. Misrepresentation (Section 18).: Misrepresentation means andincludes -
i. Making a statement in a manner that is unwarranted by theinformation of the person making it, of that which is not true,though he believes it to be true.
ii. Any breach of duty which, without an intention to deceive,gains an advantage to the person committing it or any oneclaiming under him, by misleading another to his prejudice or to the prejudice of anyone claiming under him.
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iii. Causing, however innocently, another party to commit amistake as to the substance of the thing which is the subject of the agreement.
v. Mistake of fact (Section 20):"Where both the parties to anagreement are under a mistake as to a matter of fact essential tothe agreement, the agreement is void." Mistake may be of two types:
i. Mistake of Lawii. Mistake of Fact
Mistake of Law is based no the principle of 'Ignorantia Juris NonExcusat' which means ignorance of law is no excuse.Mistake of fact may be either a bilateral mistake or even aunilateral mistake.
5. Legality of objects- Every agreement of which the object or consideration is unlawful is void. The consideration or object of anagreement is unlawful if²it is forbidden by law; or it is fraudulent; or involves or implies injury to the person or property of another; or theCourt regards it as immoral, or opposed to public policy.(sec.23).
6. Void agreement ± According to sec.2 (g). A void agreement is onewhich is not enforceable by law. Such an agreement does not give riseto any legal consequences and is void ab initio.
7. Certainity and possibility of performance -The agreement must becertain and not vague or Indefinite. [sec.29].
8. Legal formalities - The document in which the contract isincorporated is to be stamped. In some other cases, a contract, besides
being a written one, has to be registered. Thus where there is astatutory requirement that a contract should be made in writing or inthe presence of witnesses or registered, the required statutoryformalities must be compiled with [sec.10, para 2].
9. Intention to create legal relationship- When the two parties enter into an agreement, their intension must be to create legal relationship
between them. Agreements of a social or domestic nature do notcontemplate legal relationship; as such they are not contract.
Intellectual Property Right
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Intellectual property rights are a legal concept that confers rights to owners
and creators of the work, for their intellectual creativity. Such rights can be
granted for areas related to literature, music, invention etc, which are used inthe business practices. In general, the intellectual property law offers
exclusionary rights to the creator or inventor against any misappropriation or
use of work without his/her prior knowledge. Intellectual property law
establishes equilibrium by granting rights for limited duration of time.
Every nation has framed their own intellectual property laws. But on
international level it is governed by the World Intellectual Property
Organization (WIPO). The Paris Convention for the Protection of IndustrialProperty in 1883 and the 'Berne Convention for the Protection of Literary and
Artistic Works' in 1886 were first conventions which have recognized the
importance of safeguarding intellectual property. Both the treaties are under
the direct administration of the WIPO. The WIPO convention lays down
following list of the activities or work which are covered by the intellectual
property rights -
y Industrial designs
y Scientific discoveries
y Protection against unfair competition
y Literary, artistic and scientific works
y Inventions in all fields of human endeavor
y Performances of performing artists, phonograms and broadcasts
y Trademarks, service marks and commercial names and designations
y All other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields.
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Types of Intellectual Property Rights
Intellectual Property Rights signifies to the bundle of exclusionary rights
which can be further categorized into the following heads-
y Copyright
Copyright offers exclusive rights for protecting the authorship of
original & creative work like dramatic, musical and literary in nature.
Symbolized as "©", here the term 'exclusive rights' mean that the
holder has the right to determine who will be credited with the work,
who will perform the work and who will be benefited financially from
it.
y Patent
A patent is termed as the exclusionary rights given by the government
or the authorized authority to its inventor for a particular duration of
time, in respect of his invention. It is the part of the intellectual
property right, which connotes with all those rights which are grantedto any person for protecting its invention, process, discovery,
composition or new useful development etc. from its further usage
without any authentication. If more than two persons have jointly
applied for patent license, both will own the patent separately.
y Trademark
One of the part of the intellectual property law, trademark signifies to
the name, word, phrase, logo, image, design, symbol or combination of
any or all of these elements. The trademark grants rights to the owner
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which in turns may take or can commence legal proceedings in case of
infringement of trademark.
y Trade Secrets
Trade secret points towards a formula, pattern, any instrument,
design which is kept confidential and through which any business or
trade can edge over its rival and can enjoy economic gain. Trade
secrets can be anything from a chemical compound, manufacturing
process, design or preserving materials or even a list of consumers or clients. It is also known as "confidential information" or "classified
information". Though the definition of trade secret is variable as per
the jurisdiction but there are following elements that are found to be
same ±
i. It is not known by the public.
ii. It provides some financial sort of gain to its holder.
iii.
It involves reasonable efforts from the holder side for maintaining secrecy.
iv. The importance of data or information to him or for his
rivals.
v. The ease by which information could be learned or
duplicated by others.
y Utility Model
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The utility model is the intellectual property right for protecting the
inventions. It is somehow described as the statutory monopoly which is
bestow upon for the fixed duration of time in exchange to the inventor for the offering of the sufficient teaching of the invention and
permitting the other person, possessing the ordinary skills of the
relevant art, of performing the invention. The rights granted under the
utility model are somewhat identical to those conferred upon by the
patent but are more considerable for using the term 'incremental
inventions'
y Geographical Indication
Geographical Indication (GI) signifies to the name or sign, used in
reference to the products which are corresponding to the particular
geographical area or somewhat related to the origin like town, region
or nation. Thus GI grants the rights to its holder which acts as the
certification mark and shows that the specified product consists of the
some qualities and is enjoying good reputation due to its origin fromthe specified geographical location. The Trade Related Aspects of
Intellectual Property Rights (TRIPs) Agreement has defined the
'geographical indications rights' as the exclusionary rights for the
indicator which identify the goods originated within the member
nations territories, or area or region of that territory, where the
reputation or other attributes of the goods is essentially related to the
geographic origin of the place.
y Industrial Design Rights
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Industrial design rights are defined as the part of the intellectual
property rights which confers the rights of exclusivity to the visual
designs of objects which are generally not popular utilitarian. Itsafeguards the appearance, style, design of the industrial object such as
spare parts, textiles, furniture.
Advantages of Intellectual Property Rights
Intellectual property rights help in providing exclusive rights to creator or
inventor. It provides legal protection and offers them incentive of their work.
Rights granted under the intellectual property act helps in socio and economic
development.
Intellectual Property Rights in India
India has defined the establishment of statutory, administrative and judicial
framework for protecting the intellectual property rights in the Indian territory,
whether they connotes with the copyright, patent, trademark, industrial designs
etc.Tuning with the changing industrial world, the intellectual property rights
have continued to strengthen its position in the India. In 1999, the government
has passed the important legislation in relation to the protection of intellectual
property rights on the terms of the worldwide practices and in accordance to
the India's obligations under the Trade Related Aspects of Intellectual
Property Rights. It consists of -
y The Patents(Amendment) Act, 1999 which was passed on 10th March,
1999 in the Indian Parliament for amending the Patents Act of 1970
which in turns facilitate to establish the mail box system for filing
patents and accords with the exclusive marketing rights for the time
period of 5 years.
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y The Trade Marks Bill, 1999 was passed in the India parliament during
the winter session for replacing the Trade and Merchandise Marks Act,
1958. It was passed on 23rd December, 1999.y The Copyright(Amendment) Act, 1999 was passed by both upper
house and lower house of the Indian parliament and was later on
signed by the Indian president on 30th December, 1999.
y The sui generis legislation was approved by both houses of the Indian
parliament on 23rd December, 1999 and was named as the
Geographical Indications of Goods (Registration & Protection) Bill,
1999.
y The Industrial Designs Bill, 1999 was passed in the Upper House of the Indian parliament for replacing the Designs Act, 1911.
y The Patents (Second Amendment) Bill, 1999 was introduced in the
upper house of the parliament for further amending the Patents Act
1970 and making it compliance with the TRIPS(Trade Related aspect
of Intellectual Property Rights).
y Laws relating to Internet, Web and Information Technology
(Information Technology Act, 2000)
Along with the above legislative measures, the Indian government has
introduced several changes for streamlining and bolstering the intellectual
property administration system in the nation. Several projects concerning to
the modernizing of the patent information services and trademark registry
have been undergone with the help of the World Intellectual Property
Organization/ United Nations Development Programme.
Trademark
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The trademark or trade mark, symbolized as the âÄ¢ and ®, is the distinctive
sign or indication which is used for signifying some kind of goods or/and
services and is distinctively used across the business organization or by anindividual for identifying and uniquely classifying the source or their products
and/or services among consumers and making a distinction of its products or
services from the other entities. One of the part of the intellectual property
law, trademark signifies to the name, word, phrase, logo, image, design,
symbol or combination of any or all of these elements. The trademark grants
rights to the owner which in turns may take or can commence legal
proceedings in case of infringement of trademark. However registration is not
compulsory in trademark. The owner of common law trademark can also filethe suit but in case of the unregistered mark, the protection granted will only
be confined only to that geographical area within which it has been used or in
that area into which it is expected to be expand.
Informally the term 'trademark' is used for distinguishing those characteristics
or attributes which helps in identifying any individual. When the word
'trademark' is used in context of services rather than products, it may called
service mark. When the trademark is used for describing the product or service, instead of making a distinction from the third parties then it is
popularly called generalized trademark. As any sign which is attributed of
doing the essential required functions of the trademark may be headed under
the term 'trademark'. It may include various non-conventional signs like
shapes(three dimensional trademarks), smells, sounds, moving images, taste,
color and even texture. The extent to which these non conventional trade
marks are recognized or even protected varies from one jurisdiction to
another.
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Advantages of Trademarks
The trademark owner is conferred upon the 'exclusionary rights' which saysthat the owner enjoys the right of using the registered trademark and can
indicate it by using the symbols- âÄ¢ and ® in relation of those goods and
services for which the owner has registered the trademark. At the time of any
infringement, the owner can take upon the case in the court. Trademark
provides the guarantee for the unchanged quality and helps in creating and
advertising the products and services in public.
Trademark Laws in India
The Indian trademark law defines the trademark as the signature, device,
word, invented word, letter, numeral, brand, name written in the particular
style, the shape of goods other than those for which the mark is intended to be
used, or any combination thereof or the combination of colors etc. Except in
certain cases, the trademark may also signified by the name of living or dead
person. The trademark helps in making an identification of the goods and
services along with its origin. It helps the trademark holder to advertise its
products or/and services and also creates a good image in the mind of its finalconsumer but the trademark chosen should be capable of making a distinction
between the goods or services of different people. Furthermore, it should not
be deceptively identical to the existing mark of the other person and should
not be such that which is restricted in the act.
In India, any person who claims to be the trademark proprietor can apply for
the trademark registration of the goods and services. For registration, the
application can be filed in the Trademark Office, in whose jurisdiction the
principal place of your business falls. If the principal office is not situated in
India then the applicant can file the application in the trademark office in
whose jurisdiction the lawyer appointed by the applicant is situated. In case it
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is the company which is yet to be formed then anyone can apply for the
registration on the behalf of the company. It is prudent to make a proper
search in the trademark office for ensuring that your registration may not becancelled due to the similarity of the proposed mark to the already existing
one. In India, the registration term of the trademark is 10 years which can be
renewed further for next 10 years by paying the renewal fees.
In India, only the trademark proprietor whose trademark has been registered
can put the symbol ® into use. If any use the symbol without the registration
of mark he/she will be held under illegal use of the trademark. If anyone is
engage in selling or providing services by using the false trademark he/shewill be entitle to the penalty of minimum 6 months which may extend to
maximum of 3 years and with the fine of not less than Rs.50,000 and which
can extend to Rs.2,00,000.
Trademark Infringement and Passing Off
Trademark is the identification mark of any company or organization. A customer relates any trademark with the quality of products and reputation of
the company that is using it. It is a distinctive name, word, phrase, symbol,
logo, design, image, or a combination of these elements that identifies a
product, service or firm that has been legally registered as the property of the
firm. Trademarks grant the owner the right to prevent competitors from using
similar marks in selling or advertising.
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There are few important functions of trademark:
A trademark can be used for identifying and distinguishing a particular seller¶s
goods from others. Trademark also shows the origin of the goods i.e. a
customer can identify the manufacturer and also assume about the quality of
goods that all goods bearing the particular trademark are of a particular quality
desired by the customers. Trademarks are widely used for the advertisement
purposes also which helps to customers in associating any good with the
quality, reputation and goodwill of any company. So it is very important for
any organization to take precautions while allowing any one to use its
trademark because the name and reputation of the company is directly
associated with the trademark.
There has been various new concepts have emerged in relation to trademark
due to the technological revolution in the communication, media and other
areas and due to the increased knowledge and perception of individuals,
business enterprises are showing more interest in registering non conventional
marks such as colour marks, shape marks, smell marks, sound marks,
advertisement slogans, trade dress etc. to capture the market.
How it can cause damage to a Company:
If any organization is using the registered trademark of another company
without permission, that means it is not only committing a crime but also
causing damage to the business of the company and damaging the brand name
of that company. The organization might be using others trademark to use its
market reputation and market stake to enhance its own business without extra
efforts. But such companies are not using the exact trademark of other company but they generally go for use of similar marks and here the problem
came in to existence. These kind of activities mainly fall under two heads
Infringement and Passing Off.
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Infringement:
Section 29 of the Trademark Act-1999 talks about various aspects related to
infringement as given in S.29(1) that a registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of
permitted use, uses in the course of trade, a mark which is identical with, or
deceptively similar to, the trade mark in relation to goods or services in respect
of which the trade mark is registered and in such manner as to render the use
of the mark likely to be taken as being used as a trade mark.
Other subsections describes that in course of the use of the trademark it is said
to be infringing the rights of other company due to use of similar or identical
trademark using for marketing of similar kind of goods and services or use of
identical or deceptively similar trademark for any other kind of goods and
services. It is further given in the Sub Section (9) of this section that the
infringement can also be done by the spoken use of those words as well as by
their visual representation.
Passing Off:
The specific description of passing off is not given in the trademark act but thecourts have drawn its meaning from common law that if the infringement of
trademark done in such a manner where the mark is not only deceptively
similar to the trademark of other company but also creating confusion for the
customers, which ultimately results in damage for business of the company.
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CASE RELATED TO IPR
INFRING
EMENT OF TR A
DEMA
RK
The Coca Cola Company
Vs.
Bisleri International Ltd.
( In Delhi High Court)
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Background of the companies
The Coca Cola Company
Coca-Cola Company is a beverage company, manufacturer, distributor, and
marketer of non-alcoholic beverage concentrates and syrups. The company is
best known for its flagship product Coca-Cola, invented by pharmacist John
Stith Pemberton in 1886. The Coca-Cola formula and brand was bought in
1889 by Asa Candler who incorporated The Coca-Cola Company in 1892.Besides its namesake Coca-Cola beverage, Coca-Cola currently offers more
than 400 brands in over 200 countries or territories and serves 1.6 billion
servings each day.
The company operates a franchised distribution system dating from 1889
where The Coca-Cola Company only produced syrup concentrate which was
then sold to various bottlers throughout the world who held an exclusive
territory.
The Coca-Cola Company is headquartered in Atlanta, Georgia. Its stock is
listed on the NYSE
Coca-Cola in india
Coca-Cola was launched India in India in 1993, giving a new thumbs up to the Indian
soft drink market. In the same year, the Company took over ownership of the nation¶s
top soft-drink brand and bottling network which were the products of Bisleri
International Ltd. erstwhile called Acqua Minerals Pvt. Ltd.
Ever since, Coca-Cola India has made significant investments to build and
continually consolidate its business in the country, including new production
facilities, waste water treatment plants, distribution systems, and marketing channels.
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BISLERI INTERNATIONAL PVT. LIMITED
Bi l i was or i i all an Italian company created by Felice Bisler i who f irst
brought the idea of selling bottled water in India. Par le Bisler i bought over
Bisler i (India) Ltd. in 1969 and star ted bottling water in glass bottles under the
brand name µBisler i . Later Par le switched over to PVC non-returnable bottles
& f inally advanced to PET containers. In 1995 R amesh J. Chauhan star ted
expanding Bisler i operations. In 2003 Bisler i announced its venture to Europe.
The brand name Bisler i is so popular in India that it is used asgener ic
name for bottled water. Now the company Par le Bisler i runs its business with
the name Bisler i International Pvt. Ltd.
M Z
Maaza is a Coca-Cola fruit drink brand marketed in India and Bangladesh, the most
popular mango drink. Maaza was launched in 1976 in India. In India , Maaza was
acquired by Coca-Cola India in 1993 from Parle-Bisleri along with other brands such
as Limca, Citra, Thums Up and Gold Spot.
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COURT CASE
Court in which case held : HIGH COURT OF DELHI : NEW DELHI
Case no. : CS (OS) No. 2166/2008
Reserved on: 16th September, 2009
Decided on: 20th October, 2009
Plaintiff : The Coca-Cola Company
Defendent: Bisleri International Pvt. Ltd.
Facts of the case :
1. By an Agree ) ent between plaintiff and def endent dated Septe ) ber 18,
1993 the def endants owners Mr. Ramesh Chauhan and Mr. Prakash
Chauhan sold the trade marks, formulation rights, know how, intellectual
property rights and goodwill etc. of their products THUMS UP, LIMCA, GOLD
SPOT, CITRA and MAAZA amongst others to the plaintiff. The present case
deals with the product MAAZA only. Though the def endant was the
proprietor of its trademark, the secret beverage base for manufacturing
MAAZA was with an affiliate company of the def endant known as Golden
Agro Products which has now changed its name to Bisleri Sales Ltd.
2. On November 12, 1993, the plaintiff and defendant entered into a deed
of assignment by way of which the following agreements as regards
MAAZA were made :
(i) Deed of Assignment to assign and transfer trademark MAAZA in
India for a consideration of US 1,000,000;
(ii) Goodwill Assignment agreement for a consideration of US
50,000 ;
(iii) Transfer of know-how for a consideration of US 1,000,000;
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(iv) Confidentiality and non-use agreement with third party for a
consideration of US 1,000,000
(v) Non-compete agreement with Mr. Ramesh Chauhan, his wife andMr. Prakash Chauhan and his wife;
(vi) General Assignment agreement;
(vii) Agreement for compensation of relinquishment of franchise rights
under Franchise Agreements with the defendant
(viii) License agreement with Golden Agro Products Pvt. Ltd.
3. Because of the above-mentioned agreements, an affiliate of the Parle
Group by the name of Parle Exports Ltd. cancelled the then existingfranchise agreements, executed a new license agreement with the
plaintiff and entered into a relinquishment of franchise rights
agreements for a consideration of US 500,000.
4. Finally, in October 1994 the License Agreement for MAAZA between
the plaintiff and Golden Agro Products Pvt. Ltd. was entered into and
executed. It is the plaintiffµs case that by this agreement all the
trademarks, formulation rights etc. were irrevocably conveyed to the plaintiff forever. The defendant retained the trademark rights of
MAAZA in respect of other countries where it had been registered.
5. In March 2008, the defendant became aware of the fact that the
plaintiff had filed for registration of MAAZA trademark in Turkey. On
September 7, 2008 the defendant no. 1 sent the plaintiff a legal notice
repudiating the Licensing Agreement thereby ceasing the plaintiff from
manufacturing MAAZA and using its trademarks etc. directly or
indirectly, by itself or through its affiliates. As per the plaintiff, the
notice claimed that the plaintiff had breached the said agreement by
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attempting to register MAAZA in Turkey as the
agreements/assignments between the parties allowed the plaintiff to
use MAAZA in India alone. The notice also stated the defendant¶sintention to start using the trademark MAAZA in India.
6. The plaintiff has filed the present suit seeking permanent injunction
and damages for infringement of trade mark and passing off as its
claim is that the defendant has completely ignored the irrevocable and
absolute transfer of the trademarks, formulations, intellectual property
rights and know-how in favour of the plaintiff.
7. Further, the defendant has allegedly unauthorised permitted the
manufacture of certain ingredients of the beverage bases of MAAZA to
be manufactured by a third party in India by the name of Varma
International located in Chittor, Andhra Pradesh and Indian Canning
Industries also located at Chittor. The plaintiff has claimed that this is
an infringement of the exclusive usage rights of its registered
trademark no. 309362 in Class 32 of MAAZA in India.
8. The Delhi High Court passed an order dated October 15, 2008
restraining the defendant , its officers, employees, agents and sister
concerns from using the mark MAAZA or any other deceptively
similar trademark in relation to mineral, aerated water, non-alcoholic
drinks and syrup and other preparation for making such beverages. The
defendant no. 1 and its officers etc. were also restrained from using
and/ or disclosing to any person the know-how, formulations, and other
intellectual property used in the preparation of beverage bases and
beverages sold under the trademark MAAZA. By the same order, two
local commissioners were appointed to take inventory of the two
locations in Chittor.
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9. On 13th January 2009 the plaintiff filed an application seeking to
implead Mr.Vishal Varma, sole proprietor of Varma International andRamesh Chauhan of Parle-Bisleri being necessary parties. It is
mentioned in the plaint that the defendant had permitted M/s.Varma
International to manufacture goods, the formulations and know-how
etc. and whose premises the Local commissioner also visited on 15th
October 2008.
10. The counsel on behalf of the defendant said that since the defendant
had nothing to do with the proposed M/S Varma International,
therefore, no reply to the same was necessary. The said application was
allowed. Mr. Vishal Varma, sole proprietor of Varma International and
Mr. Ramesh Chouhan were impleaded as defendant no. 1 and 2
respectively in the suit.
11. The court appointed two local commissioners being Mr. K.
Parameshwar, Advocate and Ms. Altaf Fatima, Advocate to visit M/s.
Varma International at, Chittor , Andhra Pradesh and Indian CanningIndustries, Chittor , Andhra Pradesh respectively. The first of the two
local commissioners found MAAZA labels and MAAZA embossing
on empty and full bottles, duly reported in the report filed on 24
October, 2008. The defendant no. 1 has, in all of the applications
discussed above, stated time and again that though M/s. Varma
International is/may be producing the infringing labels/beverage, the
plaintiff has nowhere shown any connection between defendant no. 1
and the said company. The plaintiff, in turn, has contended that an
employee of the defendant no. 1, Mr. R.B. Varma, is the father of Mr.
Vishal Varma owner of M/s. Varma International, and the know-how,
formulations etc. have been conveyed by the said employee to the
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latter. The impleadment of Mr. Vishal Varma has been allowed in the
order dated 13th January, 2009.
12. By its order dated May 12, 2009 this court observed that the defendant
no. 1µs application under Order XXXIX Rule 4 would be taken up for
hearing only if the defendant no. 1 succeeds in showing that this court
has no territorial jurisdiction. Thus the courtµs decision on any other
matter will be of no avail.
13. The defendant no. 1 has prayed for the vacation of this courtµs order
dated 15 October, 2008 primarily objecting on the ground that this
court lacks jurisdiction to hear the present suit. The grounds used by
the plaintiff in the plaint to state that this court has jurisdiction are that
the defendant no. 1 is carrying on business within its jurisdiction, that
the defendant no. 1 has intention to use the infringing trade mark
within its jurisdiction, that the legal notice conveying this illegal
intention originated in New Delhi and that the defendant no. 1 has
published its intention to use the same in the Delhi Edition of the
newspaper Times of India.
14. The plaintiff in its reply has denied the contents of the application filed
by the defendant no. 1. The plaintiff has further supplemented his
submissions by adding that the license agreement dated 13th May,
2004 has originated within the jurisdiction of this Court. A newspaper
report showing the defendant no. 1µs intention to use the trademark
MAAZA in India has been published in the Delhi edition of Times of
India. It is denied that the defendant no. 1 is not carrying on business
within the jurisdiction of this court as the defendant no. 1 has a factory
in Delhi from where the defendant no. 1 is operating a sales and
distribution infrastructure similar to that in Mumbai and has an
extensive market share in and around Delhi. Further it is alleged that
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Mr. Ramesh Chauhan, who is the person with whom the
correspondence was exchanged and who has now been impleaded as
defendant, is residing in New Delhi. The Senior counsel for the plaintiff has argued that the pleadings and the reports of the Local
Commissioners along with documents filed clearly establish that this
court has jurisdiction to entertain the suit for infringement of trademark
under Section 134 (2) of the Trademark Act, 1999 and Section 20(c) of
the Code of Civil Procedure, 1908. He has also argued that the notice
sent by the defendant no. 1 itself speaks of the latterµs intention to use
the mark all over India and the said threat also creates jurisdiction of
this court.
15. The plaintiff has invoked the territorial jurisdiction of this court on
various counts. Para 28 of the plaint reads as under :
28. The defendant no. 1 us carrying on business within the
jurisdiction of this Honµble Court and also has the intention to use the
trademark MAAZA within the jurisdiction of this Honµble Court. The
legal notice through which the intention to use the mark has been
conveyed to the plaintiff has originated in New Delhi within the jurisdiction of this Honµble Court. The defendant no. 1 has also
published its intention to use the mark in India, in the Delhi edition of
Times of India.
16. The defendant no. 1 has stated that it has no business within this
courtµs jurisdiction except a factory where mineral water for Bisleri is
bottled and sold. The registered office of the defendant no. 1 is in
Mumbai. Further, all correspondence between the parties has been to
and from the defendant no. 1µs Mumbai office. The agreements
executed between the parties were also so executed either in Atlanta or
in Mumbai.
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17. As regards the question of its intention to use the infringing trade
mark, the defendant no. 1 has contended that it does not intend to do
any such thing within this courtµs jurisdiction as the said trade mark isthe registered trade mark of the plaintiff. As far as the notice
originating in New Delhi is concerned, the defendant no. 1 stated that
the legal notice dated 7 September, 2008 gives the Mumbai address
only and hence the plaintiff is attempting to mislead this court.
Relating to the article in Times of India, the defendant no. 1 has stated
that the article originated in Mumbai and was also carriedµ in the
Delhi edition since the latter is a sister concern of Times of India,
Mumbai.
Judgement of the case
The court dismissed Bisleri¶s application for vacation of the ex-parte interim
injunction against use of the Maaza trademark in India including the use for
purposes of export from India as well as their application for rejection of the
suit on the grounds that the Delhi High Court lacked the requisite jurisdiction.
The Delhi High Court has asked the Ramesh Chauhan-led Bisleri International
to stop selling the mango flavored soft-drink under the trade name Maaza in
India, giving Coca-Cola a victory in a trademark case.
The court passed an order restraining The Bisleri International Ltd, its
officers, employees, agents and sister concerns from using the mark MAAZA
or any other deceptively similar trademark in relation to mineral, aerated
water, non-alcoholic drinks and syrup and other preparation for making such
beverages. The company and its officers etc. were also restrained from usingand/ or disclosing to any person the know-how, formulations, and other
intellectual property used in the preparation of beverage bases and beverages
sold under the trademark MAAZA.
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Students¶ Analysis and Academic Learning
Indian Contract Act , 1872
The Case of Coca-Cola vs Bisleri International ltd. Falls under the category of
violation of Intellectual property rights (IPR) Law. The contract signed
between the parties was for the complete transfer of IPR from Bisleri to Coca-
Cola. The essential elements of the signed contract can be linked to Indian
Contract Act , 1872 and are discussed below.
1. Offer and Acceptance : An offer was made by Coca-Cola company to
acquire all the IPR, know-how, formulations and Trademark of softdrinks from Bisleri International Ltd. The offeree accepted it and the
contract was signed.
2. Legal Relationship : The contract was documented in favour of
interest of both the parties. Both the parties were aware of the legal
consequences.
3. Lawful consideration : Bisleri International Ltd. Asked for a lawful
consideration of USD 3.55 million from coca-cola company to
transfer its IPRs. The consideration was made by the party as per the
demands.
4. Competency to Contract : The contract was signed between two
multi-million companies. The people signing the contract on their
behalf were competent to sign it.
5. Consent between the parties : Although the contract was signed with
good consent of both the parties but after sometime the consent took a
shape of fraud committed by Bisleri International Ltd.
6. Legality of objects : The objects and the consideration were legal in
contract bearing no harm to any public or property
7. Certainity of objects : The contract was certain and clear not vague.
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8. Discharge of contract : Although the contract was breached due to
involvement of fraud but it was not terminated as the plaintiff didn¶t
appeal for termination in the court.9. Legal Formalities : Since the contract was a business contract and
renowned MNC was involved , all the formalities were documented on
paper and signed by both the parties.
Intellectual property Rights
The formulations and the process of manufacture of soft drinks was patented
by Bisleri International Ltd. The trademarks of soft drinks were also
registered by them. However after signing the contract with Coca-Cola
company and deciding on all the legal issues, all the IPRs and trademarks were
transferred to Coca-Cola which now becomes the primary owner of
Intellectual property. Thus Bisleri International Ltd. interfering with the terms
of contract was held liable for breach of contract and hence was accused.
IP laws are extremely important for the scientific development of a country.
Strong IP legislations ensure the progress in varied fields and result in thegrowth of a country's knowledge bank. However, it is of utmost importance
that the strong IP laws must be ably supported by an equally strong
enforcement mechanism as well. The Patent Act, 1970 provides for the
enforcement of patents by way of suits for infringement. In dealing with IPR
suits, the Indian Courts follow the traditional principles and procedures of civil
litigation
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References:
1. http://delhihighcourt.nic.in/
2. http://thestar.com.my/lifestyle/story.asp?file=/2007/7/31/lifefocus/18430619&sec=lifefocus
3. http://www.indiainbusiness.nic.in/investment/ipr.htm
4. http://www.dateyvs.com/gener03.htm
5. http://www.legalserviceindia.com/article/l226-Trademark-
Infringement-&-Passing-Off.html
6. http://www.wikipedia.org/
7. http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm
8. http://www.indianindustry.com/intellectual-property-rights/