Trademark Infringement | Confusion Need Not Be Between Products But Could Also Be One Of Affiliations, Sponsorship Or Connection As Well: Delhi HC

The Delhi High Court has observed that in cases of infringement or passing off, confusion need not be only between products but can also be one of affiliations, sponsorship or connection.

In that context, the Bench of Justice Prathiba M Singh observed that, "Confusion need not be between products but could also be one of affiliations, sponsorship or connection as well. A consumer might presume that the Defendant’s product is a differently priced product, emanating from the Plaintiff."

Finding that the defendant's whiskey label was deceptively similar to that of the plaintiff's, the Court took observed that, "Moreover, the Court has to put itself in a realistic position to see the manner in which bottles are stacked in bar counters. These venues are typically not brightly lit and are usually dimly lit. In such a setting, if a consumer orders the Plaintiff’s product and the bartender serves the Defendant’s product, owing to the broad similarity of the labels, the consumer may not even be able to tell that the product served is that of the Defendant’s and not of the Plaintiff’s. This likelihood of confusion is further heightened by the distance at which customers typically view bottles in a bar. This is not to say that a connoisseur of such products may not be able to discern the difference after tasting them! But the test is not of the standard of a connoisseur but that of an ordinary consumer or lay-person. Even the purchase at liquor outlets would include by consumers who could be from varying strata of society and may not be able to discern fully the distinguishing features. Confusion as to affiliation or sponsorship is a clear possibility."

Counsel Pravin Anand, along with others, appeared for the plaintiff, while Counsel J Sai Deepak, along with others, appeared for the defendant.

In this case, Allied Blenders and Distillers Private Limited had filed a suit against Hermes Distillery Private Limited, claiming that the appearance of the labels on the latter's products was identical to theirs.

The defendant argued that Officer's Choice, the brand in question, had inconsistent labels, and the company had been changing them periodically.

The High Court noted that, prima facie, there was a clear attempt to indulge in 'smart copying', and said that, "The broad similarities are so obvious at the first look, the differences are nudged into oblivion."

It was further held that the balance of convenience was in favour of the plaintiff, and that, "Irreparable harm would be caused if the interim injunction is not granted as the Plaintiff’s products are well-established products in the market, whereas the Defendant’s product has only been recently introduced under the impugned labels."

Accordingly, the Court ordered that the impugned whiskey label shall stand injuncted, and restrained the defendant from manufacturing, selling, offering for sale whisky or any other liquor products under the impugned label.

Cause Title: Allied Blenders @ Distillers Private Limited vs Hermes Distillery Private Limited

Click here to read/download the Judgment