Radico Khaitan Ltd. is an Indian company commenced its operations in 1943 that manufactures industrial alcohol, Indian Made Foreign Liquor, country liquor and fertilizers. It is the fourth largest Indian liquor company while Carlsberg is a Danish Brewery that was established in 1847. It is one of the world\u2019s largest and most popular brewery for several years. <\/p>\n
The case involves section 29 of Trademark Act, 1999 where Radico Khaitan Limited was the plaintiff. The company was using the numeral i.e. 8 from 2006 and they were generating scores of profit which was added onto their revenue turnover. Later, Carlsberg started selling beer by launching the product in February 2011 under the trademark PALONE 8 with the numeral 8 being used in the same font and color as alike the one used by Radico. <\/p>\n
Radico had filed a suit for permanent injunction for infringement of registered trademark, restraining Carlsberg from using the numeral “8” as part of its trademark along with claiming damages.<\/p>\n
Hence the major dispute between the two was because of the following reasons
\n\u2022\tRelated to the usage of numeral \u201c 8 \u201d i.e. color, identical font and identical font size with which the numeral \u20188\u2019, is printed on the bottle \u201cdistinguishing & identifying feature of its mark.\u201d<\/p>\n
\u2022\tIdea of adding Slogan on 8 to make the product distinctive.
\n1)\tRadico – 8PM BERMUDA WHITE ORIGINAL with a slogan: \u201cAATH KE THAATH\u201d
\n2)\tCarlsberg – PALONE8 WITH A SLOGAN: \u20188 KA DUM\u201d<\/p>\n
\u2022\tPrice differentiation among the products is substantial.<\/p>\n
Argument of Carlsberg were \u2013
\n\u2022\tThere are various alcoholic drinks brands in the market having reference to the numeral 8 like Signature and Bacardi.
\n\u2022\tThe reason about the price differentiation is substantial, Radico\u2019s product i.e. whisky price is costing Rs.300 per bottle while Carlsberg product i.e. beer price is costing Rs. 65 per bottle. Well, if products belong to the different class and category, having distinct feature by itself then there will be a cost differentiation. Beer cannot be sold at that range of price where Whisky and Rum are being sold.<\/p>\n
Judgment:
\n\u2022\tOn 20th December 2011, the Delhi High Court held the case in favour of Carlsberg and dismissed Radico\u2019s prayer for injunction.
\n\u2022\tBoth the products belonged and classified under variant classes i.e. class 32 and class 33.
\n\u2022\tClass 32: Beers, mineral and aerated waters and other non-al;coholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages.
\n\u2022\tClass 33: Alcoholic beverages excludes beer and on the other hand it includes whisky, rum, brandy and alcoholic beverages.
\n\u2022\tTest of distinctiveness – The facts that Numeral \u20188\u2019 was public juris which meant, it was a public right which is common to the trade in alcohol.
\n\u2022\tFurther, on comparing the two labels, it can be seen that there is no prima facie cause of any consumer confusion and damages caused, that would lead to infringement.
\n\u2022\tBoth the slogans reflect the different aspects of the product with different brand messages related to the numeral \u20188\u2019, Radico\u2019s products slogan message related to luxury of eight while Carlsberg product slogan message related potency of eight.<\/p>\n
Conclusion
\nA trademark serves as an advertising tool facilitating repeat sales and successful marketing and providing a connection to the source of a product or service. Though in the present case, the numeral “8” has not been used in the descriptive nature and rather as a prominent mark to sell products, however no action can lie against third parties as individual components of a composite mark cannot be accorded protection when there exists no distinctiveness in its usage. Hence it is a settled law that the proprietor of a protectable descriptive mark cannot lay exclusive claims in the primary or descriptive meaning of the term; such term is free to be used by anyone in its primary or descriptive context so as long as no confusion is created in the minds of the consumers. <\/p>\n","protected":false},"excerpt":{"rendered":"
Radico Khaitan Ltd. is an Indian company commenced its operations in 1943 that manufactures industrial alcohol, Indian Made Foreign Liquor, country liquor and fertilizers. It is the fourth largest Indian liquor company while Carlsberg is a Danish Brewery that was established in 1847. It is one of the world\u2019s largest and most popular brewery for… Continue reading Radico Khaitan Ltd – Rosann Rosario (M2238) – Fr. Agnel<\/span><\/a><\/p>\n","protected":false},"author":116543,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[65],"tags":[],"class_list":["post-17308","post","type-post","status-publish","format-standard","hentry","category-civil-law","entry"],"_links":{"self":[{"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=\/wp\/v2\/posts\/17308","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=\/wp\/v2\/users\/116543"}],"replies":[{"embeddable":true,"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=17308"}],"version-history":[{"count":1,"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=\/wp\/v2\/posts\/17308\/revisions"}],"predecessor-version":[{"id":17353,"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=\/wp\/v2\/posts\/17308\/revisions\/17353"}],"wp:attachment":[{"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=17308"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=17308"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.sachdevajk.in\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=17308"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}