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2012 DIGILAW 2299 (DEL)

PEPSICO, INC v. TRISTOS FOOD PVT. LTD.

2012-07-17

SANJAY KISHAN KAUL, VIPIN SANGHI

body2012
JUDGMENT : CM Nos. 11963-11964/2012 - Allowed subject to just exceptions. FAO (OS) No. 316/2012 and CM No. 11961/2012 (Stay) Let notice issue to the respondents returnable on 21.08.2012. Dasti. 1. The appellants are aggrieved by the impugned order dated 04.07.2012 of the learned Single Judge declining the relief of ad interim ex-parte injunction on an application under 0 39 Rs. 1 and 2 of Code of Civil Procedure, 1908 (the said Code' for short) filed along with the suit for infringement of trade mark, passing off and other connected reliefs. Learned Single Judge by a detailed order has come to the conclusion that no ad interim ex-parte order is required to be passed in the present case and has issued notice in the application. Even qua the prayer for appointment of a local commissioner, thus, notice has been issued. 2. Learned senior counsel for the appellants, on instructions, states that though the appellants were praying for an ad interim ex-parte order, there was no insistence by the counsel addressing the submissions that if the learned Single Judge was not inclined to grant the stay order and was inclined to issue notice returnable for a short date, reasons for non- grant of ad interim ex-parte order should be recorded. It is his submission that effectively the impugned order amounts to an order declining injunction. Learned counsel submits that there are two different aspects which appear to have got intermingled in the impugned order i.e. the infringement of the trademark of the appellants "FRITOS" on account of the use of the trademark "TRITOS" by the respondents. 3. There is also a claim of second infringement arising from the registered trademark of the appellants "TOSTITOS". 4 The second aspect arises from the allegation of passing off where the get up is identical when the respondents are using the mark "TRITOS" as compared to mark "TOSTITOS" of the appellants. The style of writing and the use of red dot over the alphabet (i) has been pointed out. In this behalf, the use of similar font by the respondents has also been pointed out. The style of writing and the use of red dot over the alphabet (i) has been pointed out. In this behalf, the use of similar font by the respondents has also been pointed out. This is stated to be apparent from the following: It is submitted that both the appellants and the respondents are dealing in food products falling in the same class and it does not make a difference that the appellants are selling salted snack food products while the respondents are selling salted almonds, salted cashewnuts, salted pistachios, grams and chanas. 5. We have examined the records filed with the appeal including the plaint, the interim application and the documents relied upon by the appellants as plaintiffs. We do find prima facie merit in the contention of the learned senior counsel for the appellants that it is a fit case for grant of ad interim ex-parte order. Insofar as the infringement of the trademarks of the appellants is concerned, the plea is not that a combination of two trademarks has been infringed as set out in the impugned order. The allegation is that the use of trademark "TRITOS" by the respondents infringes the trademark "FRITOS" of the appellants. 6. Further, the respondents have also copied the logo from the another mark of the appellants "TOSTITOS". 7. In our considered view, it is not necessary that the mark has to be identical but as long as it is deceptively similar, the necessity of injunction arises. It cannot be lost sight of that the protection of the purchasing public is of utmost importance and the purchasing public should not be misled by the use of two marks apart from the issue of dilution of the value of a mark, which is registered, by use of a deceptively similar mark. The appellants are the prior adopters and users of the registered mark "FRITOS" and "TOSTITOS". As noted above, not only have the respondents adopted the deceptively similar trademark "TRITOS" as compared to "FRITOS", but have also adopted the logo/label/writing style used with the mark "TOSTITOS". By doing so, the respondents want to, in some manner, show connection with the appellants to encash upon their goodwill. There is, thus, both a case of infringement of the trademark "TOSTITOS" and violation of the copyright of the appellants of the original artistic work contained in the visual representation of TOSTITOS and the label/packing thereof. By doing so, the respondents want to, in some manner, show connection with the appellants to encash upon their goodwill. There is, thus, both a case of infringement of the trademark "TOSTITOS" and violation of the copyright of the appellants of the original artistic work contained in the visual representation of TOSTITOS and the label/packing thereof. 8. We are, thus, of the view that the appellants have been able to make out a prima facie case and non-grant of ad interim ex-parte order would cause grave and irreparable prejudice to the appellants. The balance of convenience is also in favour of the appellants. There has not been such a time lag between the detection of the infringement and the appellants approaching the Court as to deny them the interim relief. 9. We, thus, direct the respondents, its officers and agents, stockists and franchisees or anyone acting on their behalf from manufacturing, selling or offering for sale food products under the impugned mark "TRITOS" or any other mark identical or deceptively similar to the appellants' mark FRITOS or the logo from the mark TOSTITOS including as part of their trading style till the next date of hearing. CM No. 11962/2012 (under Order 26, Rule 9 of Civil Procedure Code) 10. The appellants seek ex-parte appointment of a local commissioner to visit the premises of the respondents, its agents and franchisees where the respondents are alleged to be running the infringing activities. In view of what we have set out hereinbefore, the appellants are entitled to appointment of a local commissioner without notice to the respondents. The premises required to be visited by the local commissioner have been set out in the application which are as under: (I) TRITOS FOOD PVT. LTD. AND GINGER FOODS PVT. LTD AT: AP-30, SHALIMAR BAGH, NEW DELHI? 110 088. (II) MS.RENU GUPTA, 1005, D-MALL, NETAJI SUBHASH PLACE, PITAMPURA, NEW DELHI-110034. 11. The appellants seek appointment of two local commissioners to visit these two places simultaneously. We, thus, appoint the local commissioners to visit the aforesaid premises as per the table below who will make an inventory of the products carrying the infringing mark/logo/label and packaging material and release them to the respondents on superdari. NAME OF PREMISES NAME OF LOCAL COMMISSIONER TRITOS FOOD PVT. LTD. AND GINGER FOODS PVT.LTD AT:- AP-30, SHALIMAR BAGH, NEW DELHI? 110 088. Mr. Vikrant Pachnanda, Advocate, 423, Lawyers? NAME OF PREMISES NAME OF LOCAL COMMISSIONER TRITOS FOOD PVT. LTD. AND GINGER FOODS PVT.LTD AT:- AP-30, SHALIMAR BAGH, NEW DELHI? 110 088. Mr. Vikrant Pachnanda, Advocate, 423, Lawyers? Chamber, Delhi High Court, New Delhi, Mobile: 9871138313. MS. RENU GUPTA, 1005, D-MALL, NETAJI SUBHASH PLACE, PITAMPURA, NEW DELHI-110034. Mr. Mayank Mikhail Mukherjee, Advocate, 43, Hanuman Road, 1st Floor, Connaught Place, New Delhi-110001, Mobile: 9873064245. 12. The appellants are permitted to retain samples of the offending material. 13. It is open to the local commissioners to take assistance of a photographer. 14. In case of any resistance or premises being locked, the local commissioners can approach the SHO of the local police station who shall render all assistance to ensure execution of the local commission including by breaking open the locks. 15. The fee of the local commissioners shall be Rs. 50,000/- each apart from out of pocket expenses. 16. The application stands disposed of. 17. A copy of the order be sent expeditiously to the local commissioners. 18. The suit file be called for the next date of hearing.