IN THE COURT OF THE X ADDL. CHIEF JUDGE: CITY CIVIL COURT:
HYDERABAD.
Dated this the 31 st day of December, 2019.
PRESENT: Sri.A. JAYA RAJU,
X ADDL. CHIEF JUDGE.
OS No.95 of 2004
Between:
1. Pepsi Co Inc
2. Pepsi Co India Holding P Ltd.
.. Plaintiffs.
A n d
Magfast Beverages.. Defendant
This suit is coming before me for final disposal, in presence of Sri A Venkatesh Advocate for the plaintiffs and of M/s M papa Reddy, Advocate for the defendant and the matter having been heard and stood over for consideration till this date, this court delivered the following:
J U D G M E N T
This suit for injunction has originally been filed in the Hon’ble
High Court of Delhi at New Delhi. However, subsequently on the point of jurisdiction transferred to his court, by the Hon’ble Supreme Court of
India vide transfer petition No.535/2003, dt.08122003.
2..The case of the plaintiffs in brief is as follows:
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The plaintiff No 1 Pepsico, Inc is a corporation existing under the
Laws of north Carolina, United States of America, having it’s principal office at 700, Anderson Hill Road, Purchase, New York, USA. Plaintiff
No 2, Pepsico India Holdings Private Limited, is a company incorporated under the Companies Act 1956 having it’s registered office at JB, DLF Corporate Park, SBlock, Qutab Enclave, PhaseIII, Gurgaon,
Haryana and also at 13, Mohan Dev Building,13 Tolstoy Marg, New
Delhi is controlled by plaintiff No 1. The plaintiff No 2 is duly authorized to take all actions to protect the various trade marks of the plaintiff No 1. The plaintiffs are renowned for their manufactures and selling of beverages under the trade marks of PEPSI, MIRINDA, 7UP and AQUAFINA etc. Besides the above said products, the plaintiffs are renowned as one of the leading manufacturers and sellers of carbonated citrus flavoured soda under the name of MOUNTAIN DEW.
Further plea of the plaintiff’s is that the drink of MOUNTAIN DEW is well known by the people throughout the world and the people are well aware of the fact that the trade mark “MOUNTAIN DEW” belongs to the plaintiffs. Plaintiffs have customers consuming Mountain Dew soda all over the world.
3..Next pleas of the plaintiff is that the trade mark Mountain Dew was adopted by the plaintiffs in the year 1940 and from that time it is being used by the plaintiffs continuously. The Mountain Dew is traded
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world wide and it has excellent trading. It turns approximately over seven billion dollars a year. Their share of market in United States is 17%. The Mountain Dew represents 20% of the Pepsi’s world wide sales. Their share of market in citrus flavoured carbonated soda is 90%.
4..Moreover, the plea of the plaintiffs is that in India Mountain Dew soda was introduced on 17.01.2003 and there was tremendous response in the Indian market as well. Approximately, the turn over of
Mountain Dew soda in India from January to April was 36 crores.
Mountain Dew soda has been advertised widely in electronic and print media which costed Rs.5 Crores approximately. The trade mark mountain Dew is registered in More than 100 countries including India.
The trade mark Mountain Dew is registered trade mark of the plaintiffs in India. The plaintiffs have trade marked the name Mountain Dew in
India in 1985. The details of the registration with reference to the trade mark Mountain dew are as follows:
Trade MarkApplicationDateGoods No.
Mountain Dew 43625709.04.1985 Soft drink beverages and syrups and concentrates
Mountain Dew44407808.10.1985 Non Alcoholic beverages (logo)and syrups, concentrates and bases used in the preparations of such beverages
The above said trade marks have been renewed from time to time and
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valid under the trade and Merchandise Act 1958.
5.. What is next pleaded by the plaintiffs is, plaintiffs also sell bottled purified water in India and Abroad under the trade mark AQUAFINA.
The plaintiffs hold copy right on Mountain Dew as well as on Aquafina being owners of the trade marks Mountain Dew and Aquafina.
However, despite the fact that the plaintiffs hold trade mark on
Mountain Dew, the defendant is manufacturing and selling packaged drinking water under the name of “MOUNTAIN DEW” which is almost identical to the plaintiffs trade mark mountain dew. Besides adopting the trade mark of the plaintiffs, the defendant copied Aquafina, right from the letters to colour of the bottle of the plaintiffs “ Aquafina”. The beginning letter “M” and ending letter “N”, lable and shade of colour (Royal Blue) on the packaged drinking water bottle of the defendant is identical with the water bottle of the plaintiffs being manufactured under the name of Aquafina. The fact of the defendant manufacturing packaged drinking water under the name of Mountain dew became known to the marketing department of plaintiffs in the month of June 2005. The defendant has resorted to this illegal act deliberately to have monetary benefit. Since the products of plaintiffs and the defendant are being manufactured under the same names of Mountain dew there is every likely hood of causing confusion among the consumers and
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making mistaken impression that the defendant is having connections with the plaintiff’s company and the packaged drinking water being manufactured by the defendant is another product of the plaintiffs. The act of manufacturing packaged drinking water by the defendant in the name of Mountain Dew which is identical to the trade mark of the plaintiffs Mountain Dew is illegal, unlawful and amounts to infringement of trade mark.
6.. Furthermore, it is the plea of the plaintiffs that the packaged drinking water being manufactured by the defendant is not up to the standards, where as the bottled purified water being manufactured by the plaintiff’s under the name of “AQUAFINA” is high standards of quality and they maintain high standards of customer care. In addition to what has been pleaded, plaintiffs plead that the citrus flavoured carbonated soda and packaged drinking water being manufactured by the plaintiff under the name of Aquafina respectively, and packaged drinking water being manufactured by the defendant under the name of Mountain Dew fall under the same class 32 of the Act, 1958 and 1999 Act and the rules framed there under. Therefore, the possible scenario would be that the consumers get confused a lot. Unlike that, if the product that is being manufactured by the defendant falls different class i.e. for instance Chair, pot or T V or refrigerator, the chances of consumers getting confused are less. Therefore, if the defendant is
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allowed to continue to manufacture the packaged drinking water under the name of mountain dew it not only amounts to violative of plaintiff’s right, but harmful to the public whereby the good will having by the plaintiffs all over the world gets damaged. The illegal and unlawful act of the defendant amounts to infringement of trade mark of the plaintiffs, infringement of copy right and passing off and leads to unfair competition. Therefore, this suit for injunction to restrain the defendant not to misuse the trade mark of the plaintiffs. Cause of action, submit the plaintiff, arose in the month of June 2003, when the plaintiffs marketing department came across the product of the defendant and cause of action continuous to exist until an order of injunction is granted.
7.. On the other hand the pleadings of the defendant in his written statement is as under:
The defendant after having obtained license and registered with sales tax authorities, and after having been issued ISI No 14543/98 and after having advertised widely on 08.11.2000 in Siasat daily Urdu news paper, circulated not only in India but also in USA, UK, Saudi Arabia,
Qatar, United Arab Emirates, Germany and Japan, started manufacturing and marketing it’s packaged drinking water under the name of ”Mountain Dew”, from 2000 and earned good name and fame and reached to the level of supplying it’s packaged drinking water to
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the National Games held in Hyderabad in the Year 2002 and to star hotels like Viceroy and Kakatiya etc. Also it is submitted that the defendant made an application for registration of trade mark under the name of mountain dew and the same is pending. Yet it is contended that the plaintiffs started manufacturing and selling packaged drinking water in the year 2002 under the name of Aquafina. Plaintiffs have never manufactured packaged drinking water under the name of
Mountain Dew. Though the plaintiffs claim to have registered the their trade mark Mountain dew soda in India 198485, it has never been advertised or publicized. It was only in the year 2003 that the Indian consumers became aware of Mountain Dew soda, when the plaintiffs launched it in India. Therefore, the defendant is prior user of the name
Mountain dew.
Still, it is submitted that the trade mark of the plaintiff i.e. mountain dew is for citrus flavoured carbonated soda, but not for packaged drinking water. Too, pleads that after making thourough search in websites and after verifying the list of 400 companies in the websites and after ensuring himself that there are no companies which were manufacturing packaged drinking water by the name Mountain Dew, he started manufacturing packaged drinking water in the year 2000, much earlier than to the launching of Mountain dew soda in India by the plaintiffs. Further, it is pleaded that plaintiffs company has never
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manufactured packaged drinking water under the trade mark of
Mountain Dew. Therefore, it’s registration is restricted to such goods i.e., citrus soda and other ancillary goods, but not to packaged drinking water.
8.. Next, what is being pleaded by the defendant is, the predecessors in title of the trade mark of the plaintiffs themselves disclaimed the exclusive use of the word Mountain dew as a condition for registration. Moreover, the word Mountain dew is being used by more than one entity and there are common law owners of the said trade mark.
In response to the pleading of the plaintiffs that since the defendant is manufacturing packaged drinking water under the name of Mountain dew and the plaintiff also bore the same name for their citrus flavoured carbonated soda there is every likely hood of consumers getting confused, it is contended by the defendant that the packaged drinking water which is being manufactured by the defendant and citrus flavoured carbonated soda being manufactured are two different products intended for two different purposes, therefore, it does not cause any confusion among the consumers. Therefore the question of consumers getting confused will not arise.
In response to the further pleading of the plaintiffs that the plaintiffs hold copy right on the packaged drinking water under the name of
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Aqufina, but the defendant copied the letters, lable and shade of colour on the bottle of Aquafina, therefore it amounts to infringement of copy right, it is submitted that since the names Aquafina and Mountain dew are two difference names it does not create any confusion among the consumers. Moreover, submits the defendant, that the defendant launched his product in the year 2000, where as the plaintiff launched their product Aquafina in the year 2002. Therefore, consumers cannot be mislead by the name Mountain dew used by the defendant for packaged drinking water and used by the plaintiffs for citus flavoured carbonated soda. Likewise, the defendant never intended to imitate the plaintiffs goods. The pleadings of the plaintiff that there is similarity between the two bottles i.e., Aquafina and Mountain Dew, the shade of blue beginning letters “M” and ending letter “N” is entirely denied.
9..With regard to the allegation of passing off, it is answered by the defendant that soda manufactured by the plaintiff and packaged drinking water being manufacturing by the defendant are two different things therefore, consumers can easily differentiate the two products as such, no passing off would be resulted in.
With reference to the allegation of quality, the answer of the defendant is, the purified water manufactured by the plaintiff found to have residuals of pesticides and unfit for human consumption as per the report centre for science and environment and it has also been reported
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by Aajtak news channel, but the water being manufactured by the defendant on the other hand is free from any pesticides and stood to the test conducted by public analyst and found to be fit for human consumption. Therefore, as far as the quality of the Aquafina of the plaintiffs is concerned, “the less said the better”, submits the plaintiff.
Thus, touching all the pleading of the plaintiff it is prayed to reject the suit by imposing heavy costs for misusing and abusing the process of the court.
10.. From the above said pleadings the following issues are settled for determination:
1. Whether the plaintiffs are the registered holders of the desputed trade mark?
2. Whether the defendant infringed the right of the plaintiffs to the exclusive use of the trade mark?
3. Whether the plaintiffs are entitled to the injunctions as prayed for?
4. Whether the plaintiffs are entitled to the damages as prayed for?
5. Whether the plaintiffs are entitled to the delviery of material containing the trade mark?
6. To What relief?
11.. On behalf of the plaintiffs two witnesses namely V R
Shankar and Elizabith N Bilus examined as PW1 and PW2.
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On behalf of the defendants also two witnesses namely
Syed Ghazuddin and R Satyanarayana examined as DW1 and DW2.
Plaintiff exhibited 57 documents, where as the defendant exhibited 145 documents.
The chief examination of PW1 and DW1 is nothing but repetition of plaint and written statements. Therefore their chief examinations are not being reproduced. I will refer their evidence in discussion whenever it becomes necessary.
12.. Issue No 1:
Whether the defendant infringed the right of the plaintiffs to the exclusive use of the trade mark?
The case of the plaintiff is that they hold the registered trade mark by name Mountain Dew in 100 countries in the Globe. They have registered the trade mark Mountain Dew in India in the year 1985 vide registered No 436257 dt.09.04.1985 and they have registered Mountain
Dew logo vide registered No 444078 dt.15.10.1992 under clause32.
That the plaintiffs company holds registered trade mark by name
Mountain dew is not disputed by the defendants. While the defendant admitting the trade mark of the plaintiffs by name Mountain Dew, also contends that the trade mark of the plaintiffs company is for production of soft drinks and lime soda by name Mountain Dew, but its trade mark is not for packaged drinking water. On the other hand, the case of the
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plaintiffs is Ex.A3 and A4 speak of the registration of the trade mark of the plaintiffs and the original registration of the trade mark shall be prima facie evidence of the validity. Therefore, the plaintiffs shall be held to be registered holders of the trade mark “Mountain Dew”. On the other hand, the contention of the defendant is that though the plaintiffs got their trade mark registered in India they cannot be held to be registered trade mark holders of the disputed trade mark because their registration is not absolute, their registration is subject to some limitations. It is contended by the defendant that though the plaintiff’s company is claiming to have registration to their trade mark in the year 1985, it has neither manufactured the product nor sold in India till
January 2003. Further, the defendant contends that the erstwhile owners of the mark and predecessors in interest of Pepsico, who sought for registration of the mark originally never claimed to have coined the mark “Mountain Dew” . Infact, Hartman Beverages made a disclaimer at the time of registration of the trade mark in USA to the effect that “exclusive use of the words Mountain Dew is not claimed apart from the rest of the mark”. Therefore, the plaintiff’s company cannot be held to have hold exclusively trade mark Mountain Dew. The defendant further contends that in view of the disclaimer made by the Hartman
Beverages, the plaintiff’s company will have only restricted rights. If we make a reference to the cross examination of PW2 the contention of the
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defendant that predecessors in interest of the plaintiffs made disclaimer can be understood. PW2 in his cross examination dt 28.01.2011 clearly stated that the Hartman Beverages company made a disclaimer at the time of registration of the trade mark to the effect that exclusive use of the words Mountain Dew is not claimed apart from the rest of the mark. At this juncture, I would like reproduce the evidence of PW2 in his own words. “ I am aware that the Hartman Beverages company
made a disclaimer at the time of registration of the trade mark to
the effect that exclusive use words Mountain Dew is not claimed
apart from the rest of the mark”. (Cross examination of PW2 dt.28.01.2011)
“ His answer to the question his predecessors in interest of the
mark Mountain dew did not claim exclusive user of the mark
Mountain Dew is” “ yes it had not claimed exclusive user of the
mark”. (Cross examination of PW2 dt 28.01.2011)
Further, in the cross examination of PW2 dt 28.01.2011, PW2 testified that he had seen the internet printout from Korea Times dt.26.07.2004 filed by the defendant. According to said article hadong
“Mountain Dew” Tea Cultural festival is being held since 16 & 17
Century in Kora. In the cross examination of PW1dt 15.07.2008, PW1 clearly and categorically stated that they were aware of the words
Mountain Dew being used all over the world in all walks of life
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(Including for Irish whiskey for Korean tea and other products, such as music band, in UK, traditional songs web site Scotland, Europe, Irish
Flok song web site in Ireland) stut farms for horses, pittarpan industry in USA for music related books and for apparel in USA in customs yarn company, advertising and printing company in Pakistan by Sony Music in their web site offering Mountain dew sound disk etc. To know what exactly PW1 stated in his cross examination, I would like to reproduce his evidence in his own words. Which runs as under:
“ we are aware that the words “Mountain Dew” are being used
all over the world in all walks of life including for Irish, Whiskey,
for Korean tea and other products, such as music band in UK,
traditional songs web site in Scotland, Europe, Irish Folk songs
website in Ireland. “ Stut forms for horses pitterpan industry USA
for music related books and for apparel in USA in customs yarn
company, advertising and printing company in Pakistan by sony
music in their web site offering Mountain Dew sound disk etc.” By drawing my attention to the above said testimony of PW1 and 2 in their cross examination wherein PW1 testified that it was within his knowledge that the word mountain dew is being used all over world in all walks of life and referring to the cross examination of PW2 wherein he admitted that the Hartman Beverages at the time of registration, made a disclaimer to the effect that exclusive use of the words
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“Mountain Dew” is not claimed apart from the rest of the mark, it has been contended that because trade mark was already in existence and bore by the others the registering authority must have insisted the
Hartman Beverages, company to make disclaimer as such the Hartman beverages must have made disclaimer. In view of the admissions made by the PW1 & 2 that the name of Mountain Dew is being used by all walks life, the defendant contends that the plaintiff cannot be held to have exclusive right on the trade mark Mountain Dew.
Plaintiffs contend that the argument of the defendant that Hartman
Beverages, predecessors in title of the plaintiff disclaimed the exclusive use of word mountain Dew as such the plaintiffs have no better title than what the Hartman Beverages(predecessors in title) company itself did not have, does not stand for reason for the present suit for infringement of trade mark concerning trade mark registered in India vide No 436257. But the argument of the plaintiffs have no force in it, because the plaintiff cannot get what Hartman Beverages (from whom the plaintiff alleged to have been assigned in 1964) itself did not have.
The contention of the plaintiff is like saying “carpenter who makes a chair out of wood (some preexisting thing) will have right over it”.
Even the argument of the defendant does not suggest that the defendant coined the name mountain dew. The evidence of the defendant suggests that he adopted the name from some perexisting
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name, but that name not belongs to plaintiff exclusively. In view of the disclaimer made by the Hartman Beverages, who are the predecessors in title of the plaintiffs and many products across the world bore the name of mountain dew according to the admissions made by PW1 & 2 in their cross examination, plaintiffs company cannot have exclusive right over Mountain dew. Therefore, plaintiffs cannot be held to have bore the title of Mountain dew absolutely. The evidence of PW1 & 2 suggest that their right on Mountain dew have some limitations.
Accordingly issue No 1 is answered.
13.. Issue No 2:
Whether the defendant infringed the right of the plaintiffs to the exclusive use of the trade mark?
The learned counsel appearing for the plaintiffs making reference to large number of cases presented strong arguments as to why injunction should not be granted in favour of the plaintiffs. I will just summarize the main points of the arguments of the learned counsel appearing for the plaintiffs.
The essence of the plaintiffs side arguments is that the name of
Mountain Dew was registered in the name of plaintiff company and plaintiffs registration stands proved as plaintiffs produced legal proceedings with reference to the registration of trade mark Mountain
Dew. Further it has been contended that the civil court does not have
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the power to examine the validity of registration of trade mark. Yet further what has been presented by the plaintiff’s counsel in his arguments, is unauthorized use of a trade mark by the defendant with respect to the goods falling in the same class in respect of which the trade mark has been registered in the name of plaintiff’s company is violative of the rights of the plaintiffs. In addition to what has been argued, the learned counsel appearing for the plaintiffs contends that the products being manufactured by the plaintiffs and the defendant fall under the same class32 and are sold across the same counter.
Therefore, it causes confusion among the consumers. It is the contention of the plaintiff that the plaintiff’s trade mark has trans bordered reputation having registration in morethan 100 countries and their trade mark requires to be protected even in the countries where their products are not sold. Yet further, it has been contended that if adoption of the trade mark is subsequent, tainted and dishonest, even long user, reasonable reputation and goodwill of the trade mark cannot vest any right in the defendant and the registered proprietor of the trade mark will have exclusive right to use the trade mark and to obtain the relief in respect of infringement as provided under the Act. Still further, it has been contended that once it is proved that the defendant is infringing the plaintiff’s trade mark injunction must follow and the plaintiffs are entitled to compensatory damages, damages to goodwill
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and reputation and exemplary damages.
Just as the learned counsel appearing for the plaintiffs made a reference to large number of cases in support of his contention, so also the counsel appearing for the defendant in opposition to the arguments of the plaintiffs made reference to large number of cases.
The case laws to which reference has been made by the learned counsels appearing for the plaintiffs and defendant would become relevant if only they stand to the test of scrutiny by the court with reference to the relevant provisions of the trade mark Act and in the light of established principles of law.
14.. Now let us make a brief reference to the decision relied on by the plaintiff.
15.. The learned counsel appearing for the plaintiff making reference to Hindustan Pencils Limited vs. M/s J N Ghosh & Brothers Pvt. Ltd.,
MIPR 2007 (1) 0041 it has been contended that for the registration of the trade mark to be proved mere production of legal proceeding certificate with reference to the registration is sufficient. In the case on hand as the plaintiff exhibited Ex.A3 and A4 legal proceedings, the registration of the plaintiffs trade mark stands proved. In the above said case, the Hon’ble Delhi High Court held that according to sec 31 of the Trade Mark Act 1958, registration is prima facie evidence of it’s validity. Therefore, plaintiff has only to produce certificate of
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registration of his trade mark to establish evidence of title. The issue involved in the above said case is with reference to registration. The registration of the trade mark of the plaintiff in India is not in dispute.
The case of the defendant is he is prior user, because he started the manufacturing packaged drinking water under the name of mountain dew long before the introduction of citrus soda in India by the plaintiff under the name of mountain dew. Hence, his rights over the mountain dew are superior to the rights of the plaintiff. Therefore, the observation of the Hon’ble Delhi High Court in Hindustan Pencils
Limited vs. M/s J N Ghosh Pvt Ltd., is by no means helpful to the plaintiffs.
16. In Kamal Trading Co. and Others vs. Gillette U.K. Limited, 1988 (8) PTCI (BOM), the defendant manufactured tooth brush using the similar trade mark of the plaintiff’s 7 o clock. Plaintiff instituted suit against the defendant for injunction restraining the defendants from manufacturing, selling or offering for sale of the tooth brush and the like goods bearing the trade mark 7o clock. The action instituted by the plaintiff is on the basis that the defendants are passing off the goods with a view to trade up on the reputation acquired by the plaintiffs.
The trial court granted interim relief. On the appeal preferred by the defendants, the Hon’ble Bombay High Court dismissed the appeal. The
Bombay High Court observed that the defendants were unable to
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explain how the mark was invented by them. Yet it is held that the mere perusal of the tooth brush and the plastic pouch in which it was sold clearly reveals the dishonest conduct of the defendant. Further it is observed that the mark used on the tooth brush and the plastic pouch is also not identical. The plastic pouch mentions the word “R” in a circle to suggest that the mark used by the defendants is a registered mark. In addition, a picture of tower possibly Fifet tower, is printed on the pouch to suggest that the goods are manufactured in paris. The defendants also used the words as “Hollywood London Paris” to suggest that the goods are of Foreign made. Further it was observed that the conduct on the part of the defendants clearly indicate that the anxiety was to trade upon the reputation of the mark 7 O Clock and not to leave any chance for customer to detect the misuse of the mark and effort was made to give an impression that the mark is registered mark and the goods are manufactured in Foreign country. With the said observations the appeal was dismissed.
In DAIMLER BENZAKTIEGESELLS CHAFT VS EAGLE FLASK
INDUSTRIES LIMITED case (IA 5817/93 in suit 1379/93 dt 10.11.1993) ILR (1995) II Delhi, the defendants used the name “Mercedes” to their products thermos. It was pleaded by the defendant that “Mercedes” is a city in South America. But the Delhi High Court did not agree with the plea of the defendant. It is held that “Mercedes”
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is a name given to a very high priced and extremely well engineered product and the defendant cannot dilute that by user of the name
Mercedes with respect to a product like a thermos or a Casserole.
Further it is held that the trade mark law is not intended to protect a person who deliberately sets out to take the benefit of somebody else’s reputation with reference to goods, especially so when the reputation extends world wide. Further it is held that by no stretch of imagination can it be said that use for any length of time of the name “Mercedes” should not be objected to. Further it is held that none should be continued to be allowed to use a world famed name to goods which have no connection with the type of goods which have generated the world wide reputation. In Tata Sons Ltd. vs. Manoj Dodia 2011
SCC online Del 1520 the defendant Manoj Dodia and Mr Manish Dodia are stated to be co owners of M/s Durga Scale Co., which is engaged in the business of manufacturing and selling weighting scales and spring balances under the trade mark Aone TATA. The plaintiffs claim is that use of the aforesaid mark by the defendants amounts to infringement of plaintiffs registered trade mark TATA. It is further alleged that the impugned mark is inherently deceptive and constitutes a misrepresentation to unwary consumers that goods of the defendants are either of plaintiffs company or approved by it. Such misrepresentation, according to the plaintiff will inevitably lead to
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confusion or deception in the mind of the unsuspecting buyers and will result in the defendants pouching on the plaintiff’s business, goodwill and reputation, thereby amounting to passing off. Hence, sought for injunction restraining the defendants from manufacturing, selling, offering for sale advertising and directly or indirectly dealing in weighting scales and springing balances or goods of any description bearing the trade mark Aone Tata or any other mark confusingly similar to trade mark TATA amounting to passing off the defendants goods as that of the plaintiff’s. It was also sought delivery up of all the goods bearing the impugned mark, dies, blocks, cartons, lables and any other infringing material, to the authorized representatives of the plaintiff, for the purposes of destruction. The plaintiff company has also sought damages amounting to Rs.20,05,000/ besides rendition of accounts in respect of the profits earned by the defendants from the use of the trade mark Aone TATA. Considering the facts the court held that the defendant in this suit has incorporated the whole of the trademark of the plaintiff by using the word TATA along with the word
AOne on the products being sold, by him. Further, it is held that the trade mark TATA has been registered in favour of the plaintiff company in respect of weighing scales vide registration No 1191250. Further it is held as follows:
17.. The defendants, therefore, have used the mark of the plaintiff in
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respect of the same/identical/similar by plaintiffs registered trade mark
TATA and such a use is likely to cause confusion in the mind of the consumers, as to the source of the product offered to them and also give an impression that the mark being used by the defendants was in some manner or the other associated with the registered trade mark of the plaintiff company and, therefore, amounts to infringement within the meaning of section 29 (1) and 29 (2) of the Trade Mark Act, 1999.
Use of the mark TATA even in conjunction with the work AOne on the products of the defendant is likely to give an impression to the customer that the product has been manufactured or is being sold in association with a company of TATA group and an unwary customer is likely to purchase the product of the defendants only on account of use of the mark TATA on it in the belief that the product was in the same manner connected with the house of TATAs. Unwary consumer while purchasing the goods of the defendants is likely to attach considerable importance to use of the mark TATA on the product and on account of connection of the trade mark TATA with the house of TATA, he may believe that the product was likely to be of superior quality and high standard which he expects in respect of products being sold by TATA group companies. If it is later found that the quality of goods purchased by him is not as good as the quality of the goods being sold by house of TATAs, this may immensely damage the good will and
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brand equity which TATA group of companies enjoys in the market besides adversely effecting the interest of the citizens who may pay for a products of high quality but may end of with getting a product of inferior quality. Thus, not only infringement, but also a case of passing off is clearly made out against the defendant despite the fact that company of TATA group is manufacturing and selling this product.
Since the trade mark TATA is well known trade mark, use of the aforesaid mark by the defendant on the products being sold by him also constitutes infringement within the meaning of sec 29(4) of the Trade
Mark Act, 1999 since by using trade mark TATA, the defendant obviously has tried to take an unfair advantage by encashing upon the brand quality and goodwill, which the mark TATA enjoys in the market.
With the said observations punitive damages amounting to
Rs.2,00,000/ are awarded to the plaintiff company against the defendant Manoj/Dodia.
18..Making reference to the above said three cases i.e. Kamal Trading
Co. & others vs. Gillette U.K. Ltd., 1988 (8) PTC 1 (Bom), Daimler
Benzaktiegesellschaft & another vs. Eagle Flask Industries Ltd., ILR (1995)2 Del 817 and TATA Sons Ltd., Vs Manoj Dadio and others, 2011
SCC online Del 1520, it has been argued that the trade mark of the plaintiff is well known to the world and has trans boardered reputation.
Further it has been argued that the act of manufacturing packaged
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drinking water by the defendant under the name of mountain dew which is the registered trade mark of the plaintiff is nothing but trading upon the good will, name and fame of the plaintiff which amounts to passing off. Next it has been contended that the packaged drinking water being manufactured by the defendant is of low quality, therefore the consumers who consume the packaged drinking water being manufactured by the defendant being under the impression that the product belongs to the plaintiff make a bad propaganda that quality of the plaintiffs products getting diminished where by the good will of the plaintiff company is badly effected. Therefore, the defendant needs to be restrained by way of injunction. Yet further it has been contended that since the trade mark of the plaintiffs has world wide reputation, the reputation of the plaintiff requires to be protected even in the countries where the products of the plaintiff are not sold.
Still further it has been contended that the citrus flavoured carbonated soda being manufactured by the plaintiff company under the mark mountain dew and the packaged drinking water being manufactured by the defendant under the name of mountain dew fall in the same class 32 of the Act 1955 and they are cognate goods therefore it causes confusion among the consumers. Moreover, it is the contention of the plaintiff that though the defendant applied for registration of trade mark, it has been pending for registration since 13
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long years. The defendant who not being the registered proprietor of trade mark Mountain Dew manufacturing packaged drinking water.
Therefore, The defendant by infringing the registered trade mark committed the tort of passing off.
19.. The above said three cases to which reference has been made to with reference to plea of the plaintiff would became relevant and help the plaintiff if only the plaintiff is able to establish that the trade mark of the plaintiff i.e. mountain dew has got world wide reputation i.e., trans boardered reputation and defendant has infringed the trade mark of the plaintiff.
20.. On the other hand, the defendant’s contention is he never infringed the trade mark of the plaintiff. Long before to the introduction of citrus carbonated soda under the name of mountain dew by the plaintiff in India, he started manufacturing packaged drinking water under the name of mountain dew. Therefore, the question of his violating the trade mark of the plaintiff does not arise.
The defendant contends that he launched the packaged drinking water (herein after will be referred to as PDW) under the name of mountain dew in the year 2000 itself, where as the plaintiff launched his product citrus soda on 17.01.2003 i.e. three years after his product had been launched. Next it has been contended that the plaintiff has launched his PDW under the name of “Aquafina” in the month of October 2002,
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i.e., after two years of defendant’s product launched. Therefore, the defendant’s having infringed the copy right of the plaintiff will also not arise. However, the plaintiff’s contention is that they had their trade mark registered in India in the year 1985 itself and this fact is within the knowledge of the plaintiff. Therefore, it can be said that the defendant deliberately infringed the trade mark of the plaintiff and committed the wrong of passing off. In opposition, the defendant argued that mere registration of trade mark without carrying any activity is not sufficient for the purpose of determination of proprietor of trade mark. Further case of the defendant is, though the plaintiffs claim to have registered their trade mark in the year 1985 itself no exercise has been carried out for manufacturing citrus flavoured soda until 2003. On the contrary, the defendant launched his product in the year 2000 under the name of mountain dew. Therefore he being the prior user in India will have superior rights than the plaintiff. Further referring to the sec 34 of the Trade Mark Act, 1999 which provides as follows:
“ Nothing in this Act shall entitle the proprietor or an registered user of registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods or service in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date.
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a) to the use of the first mentioned trade mark in relation to those goods or services be the proprietor or a predecessor in title of his; or
(b) to the date of registration of the first mentioned trade mark in respect of those goods or service in the name of proprietor of a predecessor in title of his; which ever is earlier, and the Registrar shall not refuse (on such use being proved), to register the second mentioned trade mark by reason only of the registration of the first mentioned trade mark, it has been contended that since the defendant has been manufacturing PDW since before the defendant introduced citrus soda, plaintiff cannot interfere with the use of mark mountain dew. Because registration of trade mark is subject to section 34 of the Act. Therefore, even the registered proprietor cannot disturb or interfere with the prior user.
21.. The verbatim in section 34 of the Act makes it clear that if a manufacturer is found to be prior user irrespective of whether he has registration or not for his mark, the registered proprietor cannot interfere with the use of similar mark. Therefore, if the defendant found to be prior use the decisions relied on by the plaintiff cannot protect the plaintiff.
22.. In support of the contention of the defendant that the rights of the prior user are superior to the plaintiff he relied on the decisions in
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consolidated foods corporation vs. Brandon & Co., Private Limited AIR 1965 BOM 35 and M/s LD Malhotra Industries vs. M/s Ropi Industries 1975 SCC online Del 172.
23.. In M/s L.D Malhotra Industries vs. M/s Ropi Industries to which reference has been made to by the defendant, it has been held that priority in adoption and use of a trade mark is superior priority in registration. In the above case on December 26th 1967 Malhotra got the word Kismat perse registered. In December 1969 Ropis got their label mark registered, but the Ropi is prior user. He set up industry in 1963, where as LD Malhotra started in 1967. Hence, litigation was ended infavour of the Ropi on the ground of prior user. In consolidated foods corporation vs. Brandon & co private Limited case the importance of the prior user recognized under common law.
24.. Now let us see with reference to evidence whether the defendant started manufacturing PDW long before the plaintiff.
25.. Admittedly plaintiff company did not launch it’s product citrus flavoured carbonated soda in the year 2000. It launched it’s product in the year 2003 though got the mark registered in the year 1985.
26.. On the other hand there is convincing evidence to say that the defendant started his product in the year 2000 itself. However, the plaintiffs contention is that the defendant did not start manufacturing
PDW since 2000. He used to supply bulky water by tankers, but not in
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the bottles. On this aspect, the learned counsel appearing for the defendants submits that the plaintiff on the one hand pleads that the defendant by using the name mountain dew and by copying the letters of Aquafina for his PDW infringed the trade mark of the plaintiff and on the other hand the same plaintiff contradicting his plea again contends that the defendant used to supply bulky water by tankers. The plaintiffs are blowing hot and cold simultaneously therefore the contention of the plaintiff that the defendant used to supply bulky water but not PDW. Therefore, the defendant cannot be held to be prior user has no force in it.
In the light of above said contentions with the available evidence, it is to be determined whether the defendant is prior user or not.
27.. Admittedly, though the plaintiff company got the trade mark mountain dew registered in the year 1985, it did not launch it’s product in India until 2003. However, it contends that since their product has trans boarder reputation the trade mark of the plaintiffs need to be protected even in the countries where their products are not sold. Let us consider this aspect later. Now let us see, whether the defendant is prior user.
28.. In order to establish that the defendant is prior user, the defendant exhibited Ex.B1 paper publication dt.08.11.2000 given in Urdu daily news paper called “Siasat”. In Ex.B1 translated copy. It was published
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as follows:
SIASAT URDU DAILY DATE: 08.11.2000 MOUNTAIN DEW PURE
DRINKING WATER MARKETED BY MAGFAST BEVERAGES.
Hyderabad Nov.7 (press note) Ozonised Hygienic water Mountain
Dew is marketed by Magfast. The old city distribution office shop No 2
Quli Qutab Shah Stadium will be inaugurated by Mohd Abdul Nayeem (presently residing in USA) on 8th November at 5.00 p.m. Apart from
Mr Syed Ghaziuddin Managing Directo Magfast Mr Sayed Shah Mazhar
Hussaini Sabir will participate as Chief Guest. This water is available in the bottles and containers of 1, 2 , 12 and 20 liters. According to
Ex B1 it can be said that the defendant gave advertisement in news paper of PDW under the name of mountain dew on 08.11.2000. Ex.B2 is certificate given by the Manager central bank of India, Chatta Bazar branch dt 29.07.2003 stating that the Manufacturers of MOUNTAIN
DEW packaged drinking water have been enjoying credit facilities with their bank with the following details:
Tern Loan 11.07.2000Rs.4,20,000/ Cash Credit Limit 11.07.2000Rs.5,80,000/ Cash credit LimitRs.10,00,000/
Ex.B3 is the certificate of permanent SSI registration issued by General
Manager District Industries centre, Hyderabad dt 14.06.2001.
According to Ex.B3 the date of commencement of production of PDW by M/s Magfast Beverages (defendant) was 13.08.2000. Ex.B4 is
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acknowledgment cum demand notice/refund order issued by commercial Tax officer, Chatta Bazar, Hyderabad dt 03.07.2003 issued to Magfast Beverages. According to Ex.B4 the turnover of the Mountain
Dew PDW was Rs.3,75,800/. From exhibits B1 to B4 what is being understood is the defendant started manufacturing PDW under the name of mountain dew in the year 2000 itself. Referring to Ex.B2 the learned counsel appearing for the plaintiff contended that Ex.B2 was issued on 29.07.2003 i.e. after plaintiff started manufacturing citrus flavoured carbonated soda under the name of Mountain Dew.
Therefore, basing on the Ex.B2 the defendant cannot be said to have started manufacturing PDW in the year. It is no doubt true that Ex.B2 is dt 29.07.2003. However, just because the Ex.B2 bore the date being 29.07.2003 it cannot be said that the defendant did not start manufacturing PDW in the year 2000. The reason is, in Ex.B2 it has been referred that Mountain dew PDW have been enjoying credit facility. The tense used in Ex.B2 is present perfect i.e., have been enjoying, which indicates that the time of action started in the past and going on at the time of speaking i.e., issuing Ex.B3. Therefore, though
Ex.B2 bore the date of 29.07.2003 it refers to past act done by the defendant. Therefore, with the help of Ex.B1 to B4 the defendant can by any stretch of imagination be said to have started PDW under the name of Mountain Dew. Though the defendant filed several other
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documents they are not necessary to be looked into since Ex.B1 to B4 are sufficient to say that defendant started manufacturing PDW in the year 2000.
29.. Now let us see how far the contention of the plaintiff that their trade mark has trans boardered reputation and it needs to be protected even in the countries where their products are not sold is tenable?
30.. Plaintiffs claim to have trans boardered reputation to their trade
mark. Therefore their trade mark requires to be protected even in the countries where their products are not sold. In support of his claim reference is made to NR Dongre & others vs. Whirpool Corporation &
Another (1996) 5 SCC 714 MAC personal care Pvt Ltd and Another vs.
Laverna GMBH and Co. KG & Another, 2016 SCC online Del 530,
Kamal Trading Co., & others Vs. Gillette U.K. Ltd 1988 (8) PTC 1 (BOM) and Jolen Inc Vs. Doctor & Company, ILR (2002) 1 Delhi 550. If plaintiff is able to prove that their company trade mark has trans boardered reputation and it is subject to right of prior user of trade mark under common law, the plaintiff’s rights shall be protected. The learned counsel appearing for the defendant submits that the reputation of the present day shall not be taken into account for the purpose of determination of transboarderd reputation. The reputation of those days when the defendant launched it’s product in the year 2000shall be taken into consideration.
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31.. The learned counsel appearing for the defendant contends that the New York Time where in the advertisements of Mountain Dew alleged to have been given under Ex.A34, 49 and Ex.A50 in the year 1995, 1989 and 1997 have no circulation in Hyderabad. Moreso, he submits that the news papers and magazines called Business Standard,
Financial Times, Time Magazine, Business week, The Economist and
USA Today where in the plaintiff said to have given advertisements under Exs.A35, 37,38 to 40 and Exs. A42 to Ex. A44 are concerning to 2004 by which time the defendant already started PDW under the name of Mountain Dew in India. Further, it is submitted that advertisements under Ex.A34, 49 and A50 are internet printouts. Hence, they need to be viewed with suspicion because internet services in the year 1995, 1989 and in the year 1997 are not so speed and accessible. As rightly submitted by the learned counsel appearing for the defendant, PW1 was not able to give answers satisfactorily concerning the circulation of
New York times in Hyderabad in 1995,1989 and in 1997. Moreover, the advertisements given under Ex.A35,37,38 to ex.A40 and A42 to A44 are pertaining to 2004 i.e., subsequent to launching of PDW by the defendant. As rightly contended by the learned counsel for the defendant the reputation of the plaintiff company has to be assessed by being in the year 2000 when the defendant started his product but not by being either today or in the year 2004 when advertisements given in
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the news papers and Magazines in the year 2004. Therefore, by no stretch of imagination the plaintiff company can be said to have transboardered reputation in the year 2000 as it has today. Even if it is accepted for argument sake that the plaintiff company has transboardered reputation in the year 2004, that cannot by no means protect the plaintiff in the light of the decision of the Hon’ble Supreme
Court in S Syed Mohideen Vs. P Sulochana Bai (2016) 2 Supreme Court cases 683 where in it is held that rights of the registered proprietor of trade mark are subject to rights of prior user. Since the defendant established that he is the prior user of the name Mountain dew the claim of the plaintiff that it has got trans boardered reputation becomes obscured.
In the light of the decision of the Hon’ble Supreme Court in S Syed
Mohideen Vs. P Sulochana Bai (2016) 2 SCC 683 and in the light of Sec 34 of the Act, all the decisions to which reference has been made to by the plaintiff become eclipsed. The trade mark of the plaintiff with reference to the evidence on record not as papular as Mercedes Benz in
Dimler Benzaktiegesellschaft & Another vs. Eagle Flask Industries
Limited or mark of TATA in TATA Sons Limited vs. Manoj Dodia 2011
SCC online Delhi 1520. In the said cases unlike the defendant in this case the defendant did not take the plea of prior user. In Kamal
Trading Co., and others vs. Gillette U.K. Limited 1988 (8) PTC 1
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(BOM) relied on by the plaintiff the defendant did not claim to be the prior user like as the defendant herein claims to be prior user. In the said three cases the defendants started manufacturing their products after the plaintiff started their products. Therefore, viewed from any angle the cases relied on by the plaintiff do not apply to the facts of this case.
Plaintiff another contention is plaintiffs company holds copy right on mountain dew as well as on Aquafina being the owners of the trade marks Mountain dew and Aquafina. However, the letters and shade of colour on the Aquafina copied by the defendant whereby infringed the copy rights of the plaintiff. On the other hand, the defendants contention is as the defendant had launched his product long before the plaintiff launched his product Aquafina, the question of copying the plaintiff’s bottle will not arise. Admittedly, the plaintiff company launched PDW under the name Aquafina in the year 2002. Therefore, the question of copying shade of colour and letters of Aquafina does not arise. I examined the two bottles of the plaintiff and defendant but found no similarity in the shape of the bottles. But the letters on the two bottles are in capital letters. I see very little similarity between the two bottles. However, as has already been stated by no stretch of imagination can the defendant be said to have copied the lable of
Aquafina for the defendant started PDW two years before the plaintiff
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introduced Aquafina in India.
The learned counsel referring to Ex.A52, 53 and A54, it has been contended that the courts India came into their rescue and protected their rights on many occasions therefore, there is a need to protect the rights of the plaintiff company in the context of infringement of their rights by the defendant. According to Ex. A52 OCJ 1/1997 filed by
Pepsi Co.Inc (plaintiff) Hon’ble Delhi High Court against Campa
Beverages. Facts in that case are Mountain dew was registered under
No 436257 on 09.04.1985. Orange Dew was sought to be registered under No 469151 on 12.03.1987. Till the date of hearing implementation of the order of Registrar dt 09.04.1997 was stayed.
However, later the respondent made statement that respondent company would not pursue the application No 469151. Hence, the
Hon’ble Delhi High Court dismissed OCJ No 1/97 on March 15th 2004.
Exs A53 and A54 are also orders of Hon’ble Delhi High Court in CS (OS) No 1140/09 under Ex. A53 and CS (OS) No 1141/09 under
Ex.A54 plaintiff company filed cases against Hindustan Bottling plant (India) Amrit Beverages for infringement of their trade mark Mountain
Dew. In that cases Adinterim injunctions granted restraining the respondents from using the mark and lebels and an advocate commissioner was also appointed for taking into custody all moulds and dyes, packaging labels, price list, Pamphlets, brochures, posters etc.
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However, that two cases ended in compromise. But in this case the defendant is seriously contesting the case. He challenged the registration of the plaintiff before IPAB for rectification of registration
No 436257 for the word Mountain Dew. Even after dismissal of the rectification petition by Intellectual property Appellate Board (IPAB) dt 11.03.2005, the defendant challenged the IPAB decision before Hon’ble
Madras High court. Therefore, we cannot equate the resistance of the defendant in this case with the respondents under Ex.A52,53 & A54 who effected compromise with the plaintiff company. Moreover, basing on the Adinterim order of the Hon’ble Delhi High Court in the above said cases, it cannot be said that the courts in India came to the rescue of the rights of the plaintiff company.
In the light of the above discussion, the defendant by no stretch of imagination can be said to have infringed the rights of the plaintiffs to the exclusive use of the trade mark? Accordingly issue No 2 is answered.
32.. Issue No 3,4, 5 and 6:
In view of my findings given in issue Nos 1 and 2, the issues 3, 4,& 5 are answered against the plaintiff.
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33.. Issue No 6:
In the result the suit is dismissed.
Dictated to the Personal Assistant, transcribed and typed by her,
corrected and pronounced by me in the Open Court this the 31st day of December 2019.
X ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD.
APPENDIX OF EVIDENCE:
Witnesses examined:
For Plaintiff: For Defendant:
PW1: V R Shankar DW1: Syed Ghazuddin
PW2: Elizabeth N Bilus DW2: R Sathyanarayana
Documents marked for plaintiff:
Ex.A122.12.2005Certified True copy resolution passed by the Board of Directors in its meeting
Ex.A231.05.2000Original Letter issued by the Plaintiff no.1 authorising petitioner no.2
ExA321.6.2004Legal Proceedings of the Plaintiff
ExA421.6.2004Legal Proceeding of the Plaintiff
ExA5Bunch of Renewal Certificates of trade marks of registry in respect of plaintiff’s one of the product (No.6)
ExA6Proceeding of the plaintiff’s brand internet printouts (No.4) (subject to objection)
ExA7List of Registration of the Plaintiff brand in various countries (Bunch)
ExA8Banner of Plaintiff’s brand
ExA9The newspaper showing the plaintiff’s
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advertisement brand
ExA10The newspaper showing the plaintiff’s advertisement brand
ExA11The label of Acqua Fina one of the plaintiff’s brand
ExA12The label of Mountain Dew one of the plaintiff’s brand
ExA13The internet print for Mountain Dew Trade Mark,containing 17 sheets
ExA14The certificate of registration (Xerox copy)
ExA15Litigation costs incurred by the PIH against MAGAFAST (Exs.A13, A14 and A15 are marked subject to objection)
ExA1619.6.2004Mountain Dew Trade Mark print out
ExA1711.2.2010Acknowledgement before the notary
ExA1811.2.2010Notarial Certificate
ExA192472009Original of delegation authority
ExA20.Original of Meeting of the Board of Directors
dated 5.6.2009(page No’s 3 to 12 )
ExA212.1.2010Trade Mark Assignment abstract of title (internet print out of 5 pages)
Ex.A22Statement of World Wide Registration of the Trade Mark . Mountain Dew ( Page No.15 to 45)
Ex.A23The Statement giving the details of the registration of Mountain Dew Trade Mark in countries like 1) Australia 2.Ohim 3.Canada, 4.Newzeland 5. UK, 6. Hongkong, 7.Singapore, 8.Turkey, 9.Switzerland 10.Estonia 11.Finland 12) Germany 13) Ire Land 14) Hungary 15) Japan and 16) Philippines with Internet printouts of registrations ( subject to objection as to verification of the Website)
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Ex.A24Original Certified Trade Mark Registration for the Trade Mark Mountain Dew from Canada, Singapoor, Lebanon, Finland and Germany(6)
Ex.A25The Original Australian Trade Mark Certificate of registration consisting of 3 sheets).
Ex.A26Original European Union Trade Mark Certificate Registration Consisting of 8 sheets)
Ex.A27Original European Union Trade Mark Certificate Registration Consisting of 5 sheets)
Ex.A28Original European Union Trade Mark Certificate Registration Consisting of 4 sheets)
Ex.A29Original Newzealand Trade Mark Certificate Registration Consisting of 4 sheets)
Ex.A30Original Newzealand Trade Mark Certificate Registration Consisting of 6 sheets)
Ex.A31Original UK Trade Mark Certificate Registration along with renewal Consisting of 7 sheets)
Ex.A32Original UKTrade Mark Certificate Registration Consisting of 7 sheets)
Ex.A33The bunch of internet printouts of the Trade Mark Registration Certificate in the USA for the Mark Mountain Dew (Pages with Sl.No.333 to 394 are marked subject to objection as to verification of the Web Site)
Ex.A3430.5.1995The internet printout of the Article in New York Times dated 30.5.1995 ( pages with Sl.No.395 ot 400 are marked subject to objection as to verification of the Web Site).
Ex.A3529.7.2004The Business Standard Daily Newspaper
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Ex.A36Cash Memo showing the purchase of Ex.A35
Ex.A371.8.2004Financial Times Daily newspaper
Ex.A382.8.2004Original Time Magzine Weekly
Ex.A399.8.2004Original Business Week,dt.09.08.2004 16.8.2004
Ex.A4031.7.2004The Economist Weekly to 6.8.2004
Ex.A413.8.2004Original Cash Memo showing the purchase Ex.A37 to A40
Ex.A4222.7.2004Original USA today daily newspaper
Ex.A4322.7.2004The Financial Times Daily Newspaper
Ex.A4423.07.2004The Original Cash Memo showing the purchase Ex.A42 and Ex.A.43 (the plaintiff represented to the court that the News Papers and Magazines are filed to show the circulation in India but not to prove the contents)
Ex.A45The Google internet printout of the Mountain Dew Soft drink ( Pages with Sl.no.411, 416 are marked subject to objection as to verification of the Web Site)
Ex.A4622.7.1981The internet printout of the New York times
dated 22.7.1981 (pages with sl.No.422 and
423 are marked subject to objection as to verification of the Website)
Ex.A4714.6.1983The internet printout of the New York times
dated 14.6.1983 (pages with sl.No.178 to
180 (Vol.No.5) are marked subject to objection as to verification of the Website)
Ex.A49The internet printout of the New York times dated 051984 (pages with Sl.No. 180 to 184 (Vol.No.5) are marked subject to objection as to verification of the Website)
Ex.A49051984The internet printout of the New York times dated 051984 (pages with Sl.No. 431 to
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434 (Vol.No.2) are marked subject to objection as to verification of the Website)
Ex.A50The internet printouts of various media reports in the magazines in New York Times, Business Week, News Buyers, USA Today from the years 1992 to 1997. (are marked subject to objection as to admissibility as some of them are not taken from original source Sl.No.135 to 478 Vol.No.2)
Ex.A51The internet printouts of various media reports in the magazines in New York times, Business Week, News Buyers, USA Today, Time Magazine. Advertising Age, Africa News and Chicago Times from the years 1997 to 2000 ( are marked subject to objection as to admissibility as some of them are not taken from original source Sl.no.489 to 584, Vol.No.2).
Ex.A52CC of Order in OCJ No.01 of 1997 on the file of Hon’ble High Court of Delhi Sl.No.602 to 619 , vol.no.2)
Ex.A53CC or Order in CS (OS) No.1140 of 2008 on the file of Hon’ble High Court of Delhi (Sl.No.620 to 625) , vol.No.2)
Ex.A54CC or Order in CS (OS) No.1141 of 2009 on the file of Hon’ble High Court of Delhi (Sl.No.626 to 632) , vol.No.2)
Ex.A55Original Copyright Registration Certificate of Aqua Fina
Ex.A56Legal proceedings Certificate for trade mark Registration No.1129381 in clause 32 of Aqua Fina Logo mark (Sl.No.643 & 644, vol.no.2)
Ex.A5726.03.2003 New Application Examination Report
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Documents marked for defendant:
Ex. B1Translation of Siasat Publication dated 8112000. Ex.B2Certified copy issued by Central Bank of India
dt. 2972003.
Ex.B3Certified copy of SSI Registration issued by government of AP dt. 1962001. Ex.B4Refund order by commercial tax officer Chatta Bazar
dt. 30.07.0
Ex.B5Return of Turnover to CTO by Plaintiff. Ex.B6Income Tax returns for assessment year 0304 dt. 1.8.03. Ex.B7Income Tax Challan Computation of Income, income and expenditure and balance sheet statements 0304, dt. 1803 Ex.B8Proceedings of the Asst. Medical Officer, Circle No.1, MCH
dt. 7901.
Ex.B9Grant of license by Bureau of Indian Standards dt. 8402 Ex.B10Renewal of license by Bureau of Indian Standards dt. 8403 Ex.B11Intimation by Trademark attorney regarding trade mark application acknowledged representation dt. 24.1.2003. Ex.B12Letter of appreciation from ITI Ltd. dt. 2.4.03 Ex.B13Letter of appreciation from Chirran Fort Club . dt. 5504 Ex.B14Letter of appreciation from Country Club dt. 2.5.03 Ex.B15Letter of appreciation from District Educational officer, RR Dist. 10.02.03. Ex.B16Test Reports from vimla Labs dt. 27.2.03 Ex.B17Original extract of publication in eenadu newspaper
dt. 31.7.03
Ex.B18License issued by Asst. Medical Officer of Health dt. 11.6.02 Ex.B19Original extract of publication in Indian express Newspaper
dt. 6803.
Ex.B20Original letter issued by siasat Daily dt. 20.8.03 Ex.B21Audit Bureau of Circulation Report dt. 18.2.03 Ex.B22Electronic Record attributable to originator Ex.B23Electronic Record attributable to originator Ex.B24Electronic record attributable to originator Ex.B25Electronic record attributable to originator Ex.B26.Electronic record attributable to originator Ex.B27Electronic record attributable to originator Ex.B28Electronic record attributable to originator Ex.B29Electronic record attributable to originator
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Ex.B30Electronic record attributable to originator Exc.B31Electronic record attributable to originator Ex.B32.Electronic record attributable to originator Ex.B33Electronic record attributable to originator Ex.B34.Electronic record attributable to originator Ex.B35Electronic record attributable to originator Ex.B36Electronic record attributable to originator Ex.B37Electronic record attributable dt. 5803 Ex.B38Electronic record attributable to originator dt. 17803 Ex.B39Electronic record attributable to originator dt.21.08.03 Ex.B40Electronic record attributable to originator dt.22903 Ex.B41Electronic record attributable to originator dt.16.12.03 Ex.B42Electronic record attributable to originator dt.5204 Exc.B43Original invoice dt. 25.4.04 Ex.B44Search report of United States PaTENT AND Trademark Office [USPTO] Electronic record attributable to originator Ex.B45Electronic record attributable to originator Ex.B46Search report of United States Patent and Trademark Office [USPTO] Electronic record attributable to originator dt.17404 Ex.B47Bunch of photographs 25 in number along with negatives Ex.B48Greeting Card of defendant firm Ex.B49Notarized copy of appreciation letter to defendant from Asia engineering dt.181003 Ex.B50Pamphlet of defendant firm Ex.B51Advertisement sticker of defendant firm Ex.B52Company letter head of defendant firm Ex.B53Electronic record attributable to originator Ex.B54.Electronic record attributable to originator Ex.B55Electronic record attributable to originator Ex.B56Electronic record attributable to originator Ex.B57Electronic record attributable to originator Ex.B58Electronic record attributable to originator Ex.B59Electronic record attributable to originator Ex.B60Electronic record attributable to originator Ex.B61Words to transitional Irish songs Ex.B62Letter from Joint Registrar of Trade marks dt. 10.6.04 Ex.B63Original extract of publication in Deccan Chronicle newspaper dt.22.7.04 Ex.B64Mountain dew label of respondent Ex.B65Mountain dew lable of respondent Ex.B66Mountain dew lable of respondent Ex.B67Mountain dew lable of respondent
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Ex.B68Mountain dew lable of respondent Ex.B69Bottle of Mountain dew drinking water [Magfast] Ex.B70Bottle of Oxyrich drinking water Ex.B71Bottle of Kinlery drinking water Ex.B72Bottle of Mounta dew [Pepsico] Ex.B73Bottle of Aquafina [Pepsco] Ex.B74Bottle of Bislery drinking water Ex.B75Bottle of Kinley drinking water Ex.B76Electronic record attributable to originator dt.26704 Ex.B77Electronic record attributable to originator dt.26704 Ex.B78Electronic record attributable to originator dt. 26704 Ex.B79Electronic record attributable to originator Dt.26704 Ex.B80Electronic record attributable to originator dt.26704 Ex.B81Electronic record attributable to originator dt.26704 Ex.B82Electronic record attributable to originator dt.26704 Ex.B83Electronic record attributable to originator dt.1804 Ex.B84Electronic record attributable to originator dt.26704 Ex.B85Electronic record attributable to originator dt.26704 Ex.B86Electronic record attributable to originator dt.26704 Ex.B87Electronic record attributable to originator dt.26704 Ex.B88Electronic record attributable to originator dt.26704 Ex.B89Bunch of sales invoices from May 2000 to May 2004. Ex.B90Electronic record attributable to originator 1804 Ex.B91Electronic record attributable to originator dt.1804 Ex.B92Electronic record attributable to originator dt.1804 Ex.B93Electronic record attributable to originator dt.1804 Ex.B94Electronic record attributable to originator dt.1804 Ex.B95Electronic record attributable to originator dt. 1804 Ex.B96Electronic record attributable to originator dt. 1804 Ex.B97Electronic record attributable to originator United states patent and trademark office dt.1804 Ex.B98Electronic record attributable to originator United states patent and trademark office dt.1804 Ex.B99Electronic record attributable to originator United states patent and trademark office dt.1804 Ex.B100Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainpure] dt. 1804 Ex.B101Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainpure] dt. 1804 Ex.B102Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator
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[Mountainvalleyspring] dt. 1804 Ex.B103Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Northern Mountain springs] dt. 1804 Ex.B 104Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Coldwater Mountainspringwater ] dt. 1804 Ex. B105Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [kabbalah Mountainspringwater] dt. 1804 Ex.B106Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [kabbalahmountainspringwater] dt. 1804 Ex.B107Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainfizz] dt. 1804 Ex.B108Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainlion] dt. 1804 Ex.B109Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainhighice] dt. 1804 Ex.B110Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountaintownspring] dt. 1804 Ex.B111Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountaincharge] dt. 1804 Ex.B112Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainedge] dt. 1804 Ex.B113Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainfizz] dt. 1804 Ex.B114Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainfrost] dt. 1804 Ex.B115Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainforestspringwater] dt. 1804 Ex.B116Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [sundew] dt. 1804
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Ex.B117Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [honeydew] dt. 1804 Ex.B118Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [mountainmist] dt. 1804 Ex.B119Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [isledew] dt. 1804 Ex.B120Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainmist] dt. 1804 Ex.B121Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [duggalsdew] dt. 1804 Ex.B122Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [scottishdew] dt. 1804 Ex.B123Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [tullamoredew] dt. 1804 Ex.B124Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainblue] dt. 1804 Ex.B125Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [oceandew] dt. 1804 Ex.B126Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [bodydew] dt. 1804 Ex.B127Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [honeydew] dt. 1804 Ex.B128Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Melondew] dt. 1804 Ex.B129Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [acquadew] dt. 1804 Ex.B130Search report of United States Patent and Trademark office [USPTO] Electronic record attributable to originator [Mountainviewfarmf] dt. 1804 Ex.B131Original Internet printout dt. 15211
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Ex.B132Original Internet printout dt.15211 Ex.B133Original Internet printout dt. 15211 Ex.B134Original extract of publication in times of India Newspaper dt.31.7.2003 Ex.B135Certified copy of Newspaper Deccan Chronicle
dated 522004 along with receipt
Ex.B136Original Siasat Daily Urdu paper dated 8112000 Ex.B137Original receipt dated 23.3.2004 (Bureau of India Standard). Ex.B138Original letter from Bureau of India Standard
dt. 29404 along with endorsement
Ex.B139Original letter from Bureau of India Standard
dt. 15404 along with endorsement
Ex.B140Original Memo by the government of A.P., Police Department Ex.B141Original for registration of Trade Marks, Mumbai [Mountain Dew] dt. 1612003 Ex.B142Original form TM 16 issued by Registrar of Trade Marks, Mumbai along with enclosures. Ex.B143Original Form “C” issued by Intellectual Property Appellate Board. Ex.B144 Original form 1 application for removal /rectification of trademark along with statement of CSE and Affidavit
dt. 1842004(Ex.A134 to Ex.A144 are marked subject to
proof relevancy and admissibility and further subject to Section 87 of Evidence Act) Ex.B145Attested copy of Deccan Chronicle English News Daily of Hyderabad Special dt. 30.9.03 attested by representative of Newspaper [the said document marked subject to objection as to admissibility and relevancy of the document and objection will be considered at the appropriate stage.]
X ADDITIONAL CHIEF JUDGE
CITY CIVIL COURT: HYDERABAD.