It is a common practice amongst many liquor manufacturers to purchase empty liquor glass bottles from kabadiwallas, get them recycled and refill them and put them in the market, since most of the bottles are of standard/common size and shape. This results in substantial cost saving as they do not have to manufacture new bottles. During the process, due to lack of supervision, bottles of other manufacturers, who have embossed their marks upon the bottles, also get mixed.
The Bombay High Court has passed several orders against manufacturers of country liquor using bottles embossed with the trade marks of other manufacturers.
In a suit being Suit No. 766 of 2014 filed by G. M. Breweries Limited Vs The Sanjivani (Takli) Sahakari Sakhar Karkhana Ltd. & Others, Justice G. S. Patel granted an injunction against the Defendants from using such bottles embossed with the Plaintiff’s mark.
Similarly Justice S.J. Kathawalla, of the Bombay High Court, in the case of Sab Miller India Ltd. vs Som Distilleries & Breweries Ltd, in 2012 held that the Defendant was guilty of infringing the Plaintiff’s trade mark and granted an injunction against it.
Again in April 2019 also granted similar orders in s suit filed by G. M. Breweries Ltd. against Vidarbha Distilleries & Ors.
Observing that the Courts was injuncting manufacturers from using bottles embossed with the trade mark of other manufacturers, some manufacturers tried to deface/mutilate the marks and use the same bottles for filling their own produce.
In a suit filed by G. M. Breweries Ltd. vs Dahisar Distilleries Pvt. Ltd. & Ors., where the Defendant had attempted to mutilate/deface the mark on the bottle, Justice K. R. Shriram in August, 2019, giving the benefit of doubt to the Defendants only directed the Court Receiver of Bombay High Court to forcibly enter the premises of the Defendant to make inventory of each bottle containing the Plaintiff’s trade mark.
Recently, even the Delhi High Court granted an injunction in favour of Anheuser-Busch LLC, owners of the trademark Budweiser, against the owners of the trademark “Black Fort” and “Power Cool”, against use of recycled bottles, with the Plaintiff’s mark embossed on the bottles, in respect of beer manufactured and sold by it. The court held that sale of any product with recycled bottles of another manufacturer would result in infringement and passing off since the Defendant’s use of the bottles which have the Plaintiff’s mark embossed on them would result in confusion as to the source.
Most of the Defendants plead that such misuse was not deliberate but was inadvertent. However, in cases where they have attempted to deface/mutilate the embossing but have failed to do so and have used such bottles to fill and sell their product, it is difficult to plead that the use is not deliberate.
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