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1990 DIGILAW 200 (BOM)

DUKE & SONS PVT. LTD. v. UNION OF INDIA

1990-06-12

M.L.PENDSE

body1990
JUDGMENT M. L. Pendse, J. (Oral) - Respondent No.2, Pepsi Food Private Limited, had entered into collaboration agreement with Pepsico Inc., U.S.A. who are the worldwide manufacturers of soft drinks known as "Pepsi Cola". In July, 1986, Punjab Agro Industries Corporation applied for obtaining an industrial licence under the Industries (Development and Regulation) Act, 1951 for the purpose of setting up a joint venture between Voltas Ltd., Pepsico Inc., U.S.A. and themselves in Hoshiarpur district of Punjab. The purpose of the venture was for setting up an Agro Research Centre, a Potato/fruit processing unit and a fruit/vegetable processing unit and soft drinking concentrate manufacturing unit. The proposal was examined by the Projects Approval Board and by the Cabinet Committee of Economic Affairs and after giving clearance, letter of intent was issued on September 19, 1988. The letter of intent inter alia prescribes: "Foreign brand names shall not be allowed to be used on domestic sales." An identical condition was put while approving the terms of collaboration agreement. 2. By letter dated April 6, 1989. Dy. Secretary to the Government of India, Ministry of Food Processing Industries, informed respondent No.2 that there is no objection to the proposed joint venture with Pepsico Inc., and/or its bottlers using the trade marks of its collaborators in conjunction with Indian trade marks. The letter clarifies that no foreign brand name will be used for domestic sales but makes it clear that there would be no objection in Pepsico using hybrid names such as Punjab Pepsi, etc. The letter dated June 9, 1990 from the Government of India reiterates the contents of the earlier letter. In accordance with the decision of the Government of India, respondent No.2 decided to use the hybrid name of "PEPSI ERA". On January 25, 1990, the Government of India informed respondent No.2 that it has been learnt that respondent No.2 is going to use international brand name "Pepsi" without any suffix or prefix. The further recites that normally, hybrid names have the Indian names as a prefix like Maruti Suzuki, Modi Xerox, Hero Honda, etc. The letter then states that the word "Era" is outside the Pepsi logo and does not appear to conform to the clarification given by the Ministry. The further recites that normally, hybrid names have the Indian names as a prefix like Maruti Suzuki, Modi Xerox, Hero Honda, etc. The letter then states that the word "Era" is outside the Pepsi logo and does not appear to conform to the clarification given by the Ministry. The letter further recites that in any case, Indian name is suffixed to the foreign brand name and such use is objectionable in the spirit of the approval granted by the Ministry. Respondent No.2 was directed to clarify as to how hybrid names with the Indian names prefixed will be used. Respondent No.2 was called upon to explain as to how the logo of Pepsi is proposed to be reproduced on the bottles of respondent No.2 without any specific approval from the Government of India. 3. On April 4, 1990, respondent No.2 informed the Secretary, Ministry of Foods Processing Industries that pursuant to discussions and in deference to the views supressed by the Government, respondent No.2 have decided to use trade mark "LEHAR" (which in Hindi moons "WAVE") in a logo form as a prefix to the international trade marks "PEPSI", "MIRINDA" and "7 UP". The letter also encloses copies of broundes depicting the use of "LEHAR" as a prefix. The letter further mentions that respondent No.2 have been permitted by Pepsico Inc. to use the international trade mark. In answer to this letter, the Secretary to the Government of India informed respondent No.2 that in the circumstances explained by respondent No.1 the Ministry has no objection to use the name of "LEHAR" as prefix to the homes" "PEPSI", "MIRINDA" and "7 UP". In accordance with the approval given by the Government of India, respondent No.2 have started production of soft drink in their factory and have bottled the drink and are distributing it in certain parts of the country from April, 1990 onwards. 4. Petitioner No.1 are manufacturers of soft drink essences or concentrates and petitioner No.3 is an Association whose constituents are the manufacturers of soft drinks which are distributed throughout the State of Maharashtra. The petition is filed on March 30, 1990 and the relief sought is writ of mandamus directing the Union of India to take steps to prevent respondent No.2 from in any manner marketing any soft drink using labels on the bottles bearing foreign brand names. The petition is filed on March 30, 1990 and the relief sought is writ of mandamus directing the Union of India to take steps to prevent respondent No.2 from in any manner marketing any soft drink using labels on the bottles bearing foreign brand names. The gravance of charge is that by using the logo and trade name "PEPSI" along with "LEHAR" or "ERA" as earlier proposed, the conditions set out in the letters of intent as well as in collaboration agreement are violated. Mr. Setalvad, learned counsel appearing on behalf of the petitioners, submitted that the action of respondent No.2 is in clear violation of the repeatedly stated policies of the Government of India and such action is bound to cause grave injuries to the members of the petitioners as well as to the public in general. Howsoever the petitioners may claim that the action is likely to cause harm to public in general, it is obvious that the anxiety of the petitioners in the petition is to prevent any competition in their business of soft drinks from respondent No.2. Mr. Setalvad contended that by use of mark "LEHAR" in "PEPSI", the objections raised by the Ministry by letter dated January 25, 1990 are not at all met with. The learned counsel urged that the name "LEHAR PEPSI" cannot be said to be hybrid name and whether the word "LEHAR" is used as prefix or suffix, that would not take away the restriction that foreign brand name should not be used in respect of domestic sales. There is no merit in this contention. The letter dated January 25, 1990 itself recites that the Government of India has no objection to use of hybrid name having an Indian name as a prefix like Maruti, Suzuki, Modi Xerox, Hero Honda, etc. It is not for rival business competitor to determine whether the name adopted by respondent No.2 is a hybrid name or not and it is only for the policy makers to determine whether the requirements are satisfied. In any event, it is not permissible for a writ court in exercise of its jurisdiction under Article 226 of the Constitution to disturb the implementation of the policy which is approved by the policy makers. Mr. In any event, it is not permissible for a writ court in exercise of its jurisdiction under Article 226 of the Constitution to disturb the implementation of the policy which is approved by the policy makers. Mr. Setalvad also urged that by permitting the use of the words "LEHAR PEPSI" and the use of logo "PEPSI" on the labels of the bottle, respondent No.2 are misleading the general public in believing that the product is of the foreign manufacturer. The submission is not contract. The Government of India has permitted respondent No.2 to use the logo of "PEPSI" but on condition that such user shall be along with Indian name as a prefix. In the present proceedings, Mr. Setalvad has fairly stated that it is not permissible for the petitioners to complain that the registered trade mark of Pepsico Inc., U.S.A. is violated, because the petitioners are not interested whatsoever in that registered trade mark. In my judgment, the complaint of the petitioners that the condition set out in the letter of intent and in the collaboration agreement is violated is not correct, apart from the fact that such a complaint cannot be examined in this petition. The Government of India had made a policy declaration and it is for the Government to decide whether the policy has been properly implemented by respondent No.2. Mr. Parasaram, learned counsel appearing on behalf of respondent No.2, in this connection, relied upon the answer given by the Minister of Industry on May 28, 1990 to an unstarred question in the Rajya Sabha. The question was whether the use of hybrid brand name would not circumvent or violate the objective of the condition that no foreign brand names will be allowed for domestic sales. The Minister replied that the use of foreign owned trade mark in conjunction with an Indian trade mark does not contravene the foreign collaboration approval given by the Government of India. It is, therefore, obvious that the Government of India do not find any fault with the manner of implementation of policy and, therefore, it is not open for the petitioners to seek any relief in the present proceedings. Mr. Setalvad complained that the Government has not filed any return, but the complaint has no merit because Mr. It is, therefore, obvious that the Government of India do not find any fault with the manner of implementation of policy and, therefore, it is not open for the petitioners to seek any relief in the present proceedings. Mr. Setalvad complained that the Government has not filed any return, but the complaint has no merit because Mr. Dalal, learned counsel appearing for the Government of India, stated that the Government supports the claim of respondent No.2 and the decision of the Government is clearly set out in the letter dated April 16, 1990. In my judgment, there is no merit in the petition and the petitioners have approached this court only with an object of preventing respondent No.2 from entering the market of soft drinks. 5. Accordingly, petition fails and is summarily rejected.