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Judgment
C. Hari Shankar, J
I.A. 22015/2023 (Order XXXIX Rules 1 and 2 of the CPC)
The plaintiff is the proprietor of the following registered trademarks:
Trade Mark
Trade Mark Number
Application Class/User Claim
Class
Status
ORS
1202213
May 29, 2003
User: Proposed to be used.
32
Registered
Goods: Mineral and aerated waters and other non-alcoholic drinks, beer, ale and porters, syrups, beverages and preparations for making beverages, fruit juices, soft drinks, sherbets, soda water included in
class 32.
ORS-O
1218294
July 28, 2003
User: July 28,
2003
32
Registered
Goods: Mineral and aerated waters and other non-alcoholic drinks, beer, ale and porter, syrups, beverages and preparations for making beverages, fruit, Juices, soft drinks, sherbets, soda water.
ORS-P
1218295
July 28, 2003
User: July 28,2003
32
Registered
Goods: Mineral and aerated waters and non-alcoholic drinks, beer, ale and porter, syrups, beverages and preparations for making beverages, fruit juices, soft drinks, sherbets, soda water.
ORS-L
1590455
August 14,
2007
User:October 1,2003
32
Registered
Goods: Mineral and aerated waters and other non-alcoholic drinks;
beer, ale and porter; syrups, beverages and preparations for making beverages, fruit juices, soft drinks, sherbets, soda water.
ORSL
2580046
August 14,
2013
User: Proposed to be used
32
Registered
Goods: Aerated water; non-alcoholic beverages; sherbets [beverages] soda water; syrups for beverages; preparations for making beverages; powders for effervescing beverages; mineral water [beverages]; fruit juices; waters [beverages]
ORS-L
1823685
May 29,
2009
User: April 1, 2009
32
Registered
Goods: Mineral and aerated waters and other non-alcoholic drinks, beer, ale and porter, syrups, beverages and preparations for making beverages, fruit juices, soft drinks, sherbets, soda water, concentrates, syrups or powders used in the preparation of non- alcoholic drinks
ORS-L Lemon Drink
2351431
June 20, 2012
User: July 1,
2003
32
Registered
Goods: Fruit juices; beverages (non-alcoholic), beverages concentrates, powders for making beverages; fruit extracts (non- alcoholic), fruit juice beverages(non-alcoholic); energy drinks [not for medical purposes], energy drinks [not for medical purposes] enhanced with vitamins, minerals, nutrients or fruit-flavors; concentrates and powders used in the preparation of energy drinks; coconut drink; mineral and aerated water; packaged drinking water; soft drinks, sherbets, soda water
ORSL
Smile for life
2658288
January 13,
2014
User: December 5,
2013
32
Registered
Goods: Aerated water; non-alcoholic beverages; sherbets [beverages]; soda water; syrups for beverages; preparations for making beverages; powders for effervescing beverages; mineral
water [beverages]; fruit juices; waters [beverages]
ORS-L Plus Orange Drink
2351429
June 20, 2012
User: June 1, 2008
32
Registered
Goods: Fruit Juices; Beverages (Non-Alcoholic), Beverages Concentrates, Powders For Making Beverages; Fruit Extracts (Non- Alcoholic), Fruit Juice Beverages (Non-Alcoholic); Energy Drinks [Not For Medical Purposes], Energy Drinks [Not For Medical Purposes] Enhanced With Vitamins, Minerals, Nutrients Or Fruit- Flavors; Concentrates And Powders Used In The Preparation of Energy Drinks; Coconut Drink; Mineral And Aerated Waters; Packaged Drinking Water; Soft Drinks, Sherbets, Soda Water
ORS-L
2382432
August 21,
2012
User: Proposed to be used
30
Registered
Goods: Protein foods and food additives not included in classes 29 & 32; pulses of all kinds; spices, flour & preparations made from cereals; edible articles for human consumption; bread, cakes, pastry & confectionery; biscuits; tea, coffee, coffee substitutes; grains; desserts; puddings; com flour powder; wafers (biscuits); cooked food & snacks; glucose; condiment; noodles & other pasta products; sphagetty; sugar, sweets; sweetmeats, toffees; breakfast food made
from wheat, maize & rice.
ORS-L
2382433
August 21,
2012
User: Proposed to be used
31
Registered
Goods: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits, fruit nuts, and vegetables, peas, seeds. natural plants and flowers, mushrooms; foodstuffs for animals; malt; scented supari (betalnut); pan masala; mukhwas; mouth fresheners.
ORSL REHYDRATE
3606825
August 4, 2017 User: Proposed to be used
32
Registered
Goods: Mineral and aerated waters and other non-alcoholic drinks; beer, ale and porter, syrups, beverages and preparations for making beverages; fruit juices, soft drinks, sherbets, soda water, concentrates, syrups or powders used in the preparation of nonalcoholic drinks.
ORS-L
2382434
August 21, 2012 User: Proposed to be used
33
Registered
Goods: All alcoholic beverages including whisky, brandy, gin, rum, vodka, wines, spirits and liquors included in class 33; fruit extracts with alcohol not included in class 32
Under the aforesaid marks, which may be referred to, collectively, as the “ORSL” marks, the plaintiff manufactures and sells electrolyte drinks. The products bearing the brand ORSL are claimed to have been introduced by the predecessor-in-interest of the plaintiff in 2003. The plaint further avers that the “ORS-L” lemon flavor has been in use in India since 2003, and the “ORS-L” orange and apple flavors are in use since 2005. The mark “ORS-L” was modified, in December 2013, to "ORSL”.
The plaint also asserts that, by consistent use over a long period of time, the plaintiff’s mark has attained distinctiveness and that the plaintiff commands considerable goodwill in the market.
The use of the “ORSL” marks of the plaintiff has, in 2023 alone, resulted in sales returns to the tune of Rs. 749 crores.
Considerable amounts have also been expended by the plaintiff towards promotion and advertisement of its marks, with the amount spent in 2023 alone being ₹ 15.8 crores.
The plaintiff is aggrieved by the use, by the defendants, of a deceptively similar mark “ORSI”, under which it manufactures and sells fruit drinks, in similar flavours. The defendants also use red lettering for its mark ORSI. The plaint also thus provides a comparison of the packs of the plaintiff’s and the defendants’ products to allege that the defendants have also adopted a trade dress which mimics that of the plaintiff:
PLAINTIFF’S EARLIER AND WELL-KNOWN TRADEMARKS AND TRADE DRESS
DEFENDANT’S IMPUGNED MARKS/IMPUGNED TRADE DRESS
These factors, it is submitted, would result in clear likelihood of confusion in the mind of a consumer of average intelligence and imperfect recollection, between the products of the defendants and the plaintiff.
The adoption, by the defendants, of a deceptively similar mark, printed in a deceptively similar manner using the trade dress which is nearly identical to that of the plaintiff, it is submitted, indicate that the defendants have consciously sought to imitate the plaintiff.
I have heard Ms. Nancy Roy, learned Counsel for the plaintiff. Despite notice having been issued in this application and service of the papers having been effected on the defendants’ by e-mail, as well as speed post/courier, there is no appearance on the part of the defendants. Nor have the defendants condescended to file any reply to this application.
The facts stated hereinabove and the submissions advanced by Ms. Nancy Roy make out a prima facie case of infringement as well as passing off. It is also prima facie apparent that the defendants have consciously sought to imitate the plaintiff. The marks of the plaintiff and the defendants are so similar that, when used for similar products, they are bound to result in confusion in the minds of a consumer between the two products.
That the defendants are not innocent adopters of a similar mark, but conscious imitators of the plaintiff, is also apparent from the stark similarity between the trade dresses of the products of the defendants and the plaintiff. The defendants have also chosen to pack and sell their products in tetra packs which have images similar to those used by the plaintiff, with the clear intention of confusing the consumer.
The volume of sales that the plaintiff commands also indicate that, over a period of time, it has amassed considerable goodwill and reputation.
A prima facie case both of passing off as well as infringement is, therefore, made out.
The fact that the defendants have not chosen to respond, despite advance notice having been served on the defendants prior to institution of the suit, as well as notice of this application having been served on the defendants by courier/speed post and e-mail indicate that the defendants do not have any substantial defence to afford to the assertions in the plaint.
The products in question are consumables. They are in the nature of electrolyte drinks. As such, any possibility of confusion in the mind of the consumer between one product and the other has assiduously to be avoided.
The facts already make out a prima facie case in favour of the plaintiff. Failure to grant injunction is bound to result in the infringing activities of the defendants continuing unchecked and the possibility of further confusion in the mind of consumer between the product of the defendants and the plaintiff.
It is clear, therefore, that if no injunction is granted as sought by the plaintiff, irreparable prejudice would result. The balance of convenience is also in favour of grant of injunction as there is no absolute bar on the defendants manufacturing and selling their products, provided they adopt a trade mark and trade dress which does not imitate the plaintiff.
The defendants’ act of adopting a mark which is structurally and visually nearly identical to that of the plaintiff along with a trade dress which is also imitative of that of the plaintiff, indicates that the defendants have strained every nerve to come as close to the plaintiff as possible. This directly calls into application the following exordium, by Lord Justice Lindley, in Slazenger & Sons v. Feltham & Co. (1889) 6 RPC 531:
“One must exercise one's common sense, and, if you are driven to the conclusion that what is intended to be done is to deceive if possible, I do not think it is stretching the imagination very much to credit the man with occasional success or possible success. Why should we be astute to say that he cannot succeed in doing that which he is straining every nerve to do?”
Where, as in a case such as the present, the defendants have made every attempt to copy the plaintiff, the court would, therefore, presume that the attempt is successful.
Inasmuch as the plaintiff has valid and subsisting registrations not only of the ORSL marks, but also of the trade dresses of its products as device marks, the adoption of deceptively similar trade dresses additionally infringes the trade mark rights of the plaintiff in its trade dresses.
A clear case for grant of interim injunction, pending disposal of the suit is, therefore, made out.
As such, pending disposal of the suit, the defendants as well as all others acting on their behalf shall be restrained from using the marks , or any other confusingly or deceptively similar marks, for fruit drinks or any other allied or cognate goods or services.
Though the Court is not interfering with the products which may already have been released in the market, the defendants shall also stand restrained from releasing into the market any stock of manufactured infringing goods which may have already been manufactured by them and lying in stock.
The defendants are also directed to forthwith remove, from all physical and virtual sites, reference to the impugned marks ORSI/ , , and .
The application stands allowed in the aforesaid terms.
I.A. 22016/2023 (Section 12A of the Commercial Courts Act, 2015)
Following the decision of the Supreme Court in Yamini Manohar v. T.K.D. Keerthi (2023) SCC OnLine SC 1382, the plaintiff is exempted from the pre-institution mediation.
The application stands disposed of.