The FIZZ is (NOT) lost

In November, 2021, Justice S. J. Kathawalla of the Bombay High Court, in Parle Agro Private Limited Versus Shri Krishna Fruit Processors Private Limited & Another, while ruling on a suit for infringement of Trade Mark and Copyright, in respect of the Plaintiff’s Frooti and Appy Fizz bottles, by an ex-parte ad-interim order restrained the Defendants from infringing the same.

Plaintiff is one of the largest Indian beverage companies and has developed some of the India’s most memorable and well-known marks/brands such as FROOTI, APPY, APPY FIZZ, B FIZZ, BAILLEY. The Plaintiff conceived and adopted the trade marks ‘FROOTI’ and ‘APPY’, both, in or around the year 1985, the trade mark ‘APPY FIZZ’ in the year 2005 and the trade mark ‘B FIZZ’ in the year 2020. Plaintiff’s ‘FROOTI’ product is a popular fruit based drink that is sold in tetra packs as well as transparent plastic bottles having a distinctive and unique shape, bearing a distinctive label.

Since March 2015, the Plaintiff has adopted and commenced use of a new and original, distinctive and unique label for use upon and in relation to its FROOTI product. The label has a yellow background with the mark ‘FROOTI’ written in green lettering in a distinctive stylized font in an upward slanting manner between two parallel green lines with the depiction of mangoes in the background. The words ‘MANGO DRINK’ are written in between the bottom parallel line in green colour in the same thickness as the said line. The bottle has a yellow coloured cap. The entire visual effect and appearance of the said tetra pack and bottle, which includes its shape, trade mark, colour scheme, get-up, layout, placement and trade dress, is highly distinctive and the Plaintiff claimed copyright in the said label. The Plaintiff also applied for and obtained trade mark registration for several FROOTI marks in Class 32.

In the year 2005, the Plaintiff launched its new apple drink under the trade mark “APPY FlZZ”. The Plaintiff’s said product was sold in a unique and distinctively shaped bottle with a distinctive two part black label. The label has undergone some changes over the years and in the year 2016 they adopted a label created by their brand creation firm.

‘APPY FIZZ’ product is a sparkling apple juice sold in a transparent plastic bottle having a distinctive and unique shape, bearing a distinctive black coloured label with a distinctive colour scheme. The Plaintiff’s ‘APPY FIZZ’ uniquely shaped bottle bears the Plaintiff’s label, which is predominantly in black colour, with the word “APPY” written in white colour within a red coloured apple device with a single green leaf and the word “FIZZ” written in a distinctive and stylized font in a vertically upward direction in white colour on the black background of the label below the apple device. The said bottle has a black coloured cap. The said label covers almost the entire bottle, save and except a small portion at the top and bottom, which reveals the contents and gives the bottle a unique appearance of a gold band on a black background. The entire visual effect and appearance of the said bottle, which includes its shape, trade mark, colour scheme, get-up, placement and trade dress, is highly distinctive. The Plaintiff also has trade mark registration for various APPY FIZZ marks/labels in Class 32.

In 2020, the Plaintiff launched a new product B Fizz, the trade dress of which has been inspired from the trade dress of the APPY FIZZ product. The artistic work of the label has been prepared by their brand creation firm. Trade Mark application for B FIZZ is pending.

The Plaintiff learnt that the Defendants were manufacturing and selling Mango, Apple and Malt based drinks under the marks FRESHEN, FROOTON, FRESHEN FIZZY APPLE, FRESHEN F CHILL with labels which were identical or in any event deceptively similar to those of the Plaintiff. All the Defendants marks/labels were depicted in fonts, style, colour schemes, placement that were identical or similar to those of the Plaintiff. The Defendants had also applied for registration of several of their trade marks.

The Ld. Judge after an ocular comparison of the rival products observed that there is hardly any doubt about the manner in which the Defendants have blatantly copied the Plaintiff’s trade marks/labels. He held that this was a classic case of infringement of the Plaintiff’s registered trade marks and copyright in the artistic work of their FROOTI, APPY FIZZ and B FIZZ artistic works/labels. He held that the impugned trade marks/artistic works/labels are deceptively similar and/or identical with the Plaintiff’s registered trade marks/labels. He observed that it is inconceivable that the Defendants independently adopted the impugned mark/label. He held that a strong prima facie case for grant of ad-interim relief was made out and if the relief prayed for was not granted the Plaintiff was likely to suffer irreparable injury.

Thus, merely because the marks/labels are not identical, because unscrupulous persons, trying to take advantage of the goodwill and reputation of another mark/product, try and modify the marks and labels to some extent, the courts may still after examining the overall impression that is communicated, grant injunctions.

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