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Report on IPR Court Case (Trademark Infringement) Coca Cola Company Vs Bisleri International Ltd.

Presented by: Shruti Mishra (12) Suchismita Bhar (15) Kanika Bajaj (17) Sonu Rathore ( 49 ) Pratiek Sahu (39 ) Gautam Gugnani ( 63 )

Index
1. 2. 3. 4. 3 4 4 7 8 11 11 13 15 18 19 21 27 28 30

5. 6. 7.

8. 9.

Acknowledgement Indian Contract Act, 1872. Essential Elements of a Contract . Intellectual Property Law (IPR) ... i. Types of IPR ii. Advantages of IPR iii. IPR in India .. Brief Explanation on Trademark . Discussion on Trademark Infringement , Passing Off .. Case Related to IPR Infringement of Trademark.. i. Background of the companies. ii. Court Case .. iii. Judgement of the Case.... Student Analysis and Academic learning . References.

Acknowledgement

We all give our heartiest thanks to Ms. Monica Suri for giving us the opportunity to work on this project and giving us suggestions and guidance to deliver the work properly. It is a great learning for us to work in a team. We are very thankful to the staff of the Amity library for the help and cooperation extended during my study and search for materials in the precincts of the library. Last but not the least, we are very thankful to my parents and to all my friends for their constant source of encouragement and motivation to prepare the case successfully.

THE INDIAN CONTRACT ACT, 1872

A contract is an agreement made between two or more parties which law will enforce.Sec.2 (h) defines a contract as an agreement enforceable by law. If we analyze the definition of Contract we find that a contract essentially consists of two elements, viz, 1. Agreement & 2. Its enforceability Sec.2 (e) defines an agreement as every promise and every set of promises, forming consideration for each other.In other words, Agreement =offer + acceptance. According to Section 10, "All agreements are contracts, if they are made by the free consent of the parties, competent to contract, for a lawful consideration with a lawful object, and not hereby expressly to be void

ESSENTIAL ELEMENTS OF A CONTRACT


1. Offer and acceptance -According to sec.2(a) a person is said to have made a proposal, "when one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal/offer". Acceptance-According to Section 2(b), "When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted." 2. Consideration-According to Section 2(d), Consideration is defined as: "When at the desire of the promisor, the promisee has done or abstained from doing, or does or abstains from doing, or promises to do or abstain something, such an act or abstinence or promise is called consideration for the promise." 3. Competency to contract-According to sec.11, every person is competent to contract who: i. is of the age of majority according to the law to which he is subject ii. is of sound mind.

iii.

is not disqualified from contracting by any law to which he is subject

4. Free consent -According to Section 13, " two or more persons are said to be consented when they agree upon the same thing in the same sense (Consensus-ad-idem).A consent is said to be free when it not caused by coercion or undue influence or fraud or misrepresentation or mistake. Elements Vitiating free Consent: i. Coersion (Section 15): "Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Undue influence (Section 16): "Where a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears on the face of it, or on the evidence, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in the position to dominate the will of the other." Fraud (Section 17): "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract. i. The suggestion, as to a fact, of that which is not true by one who does not believe it to be true. ii. The active concealment of a fact by one having knowledge of belief of the fact. iii. A promise made without any intention of performing Misrepresentation (Section 18).: Misrepresentation means and includes i. Making a statement in a manner that is unwarranted by the information of the person making it, of that which is not true, though he believes it to be true. ii. Any breach of duty which, without an intention to deceive, gains an advantage to the person committing it or any one claiming under him, by misleading another to his prejudice or to the prejudice of anyone claiming under him.

ii.

iii.

iv.

iii.

Causing, however innocently, another party to commit a mistake as to the substance of the thing which is the subject of the agreement. Mistake of fact (Section 20):"Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void." Mistake may be of two types: i. Mistake of Law ii. Mistake of Fact Mistake of Law is based no the principle of 'Ignorantia Juris Non Excusat' which means ignorance of law is no excuse. Mistake of fact may be either a bilateral mistake or even a unilateral mistake.

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5. Legality of objects- Every agreement of which the object or consideration is unlawful is void. The consideration or object of an agreement is unlawful ifit is forbidden by law; or it is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.(sec.23). 6. Void agreement According to sec.2 (g). A void agreement is one which is not enforceable by law. Such an agreement does not give rise to any legal consequences and is void ab initio. 7. Certainity and possibility of performance -The agreement must be certain and not vague or Indefinite. [sec.29]. 8. Legal formalities - The document in which the contract is incorporated is to be stamped. In some other cases, a contract, besides being a written one, has to be registered. Thus where there is a statutory requirement that a contract should be made in writing or in the presence of witnesses or registered, the required statutory formalities must be compiled with [sec.10, para 2]. 9. Intention to create legal relationship- When the two parties enter into an agreement, their intension must be to create legal relationship between them. Agreements of a social or domestic nature do not contemplate legal relationship; as such they are not contract.

Intellectual Property Right

Intellectual property rights are a legal concept that confers rights to owners and creators of the work, for their intellectual creativity. Such rights can be granted for areas related to literature, music, invention etc, which are used in the business practices. In general, the intellectual property law offers exclusionary rights to the creator or inventor against any misappropriation or use of work without his/her prior knowledge. Intellectual property law establishes equilibrium by granting rights for limited duration of time. Every nation has framed their own intellectual property laws. But on international level it is governed by the World Intellectual Property Organization (WIPO). The Paris Convention for the Protection of Industrial Property in 1883 and the 'Berne Convention for the Protection of Literary and Artistic Works' in 1886 were first conventions which have recognized the importance of safeguarding intellectual property. Both the treaties are under the direct administration of the WIPO. The WIPO convention lays down following list of the activities or work which are covered by the intellectual property rights y y y y y y y y

Industrial designs Scientific discoveries Protection against unfair competition Literary, artistic and scientific works Inventions in all fields of human endeavor Performances of performing artists, phonograms and broadcasts Trademarks, service marks and commercial names and designations All other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Types of Intellectual Property Rights Intellectual Property Rights signifies to the bundle of exclusionary rights which can be further categorized into the following heads-

Copyright Copyright offers exclusive rights for protecting the authorship of

original & creative work like dramatic, musical and literary in nature. Symbolized as "", here the term 'exclusive rights' mean that the holder has the right to determine who will be credited with the work, who will perform the work and who will be benefited financially from it.
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Patent A patent is termed as the exclusionary rights given by the government or the authorized authority to its inventor for a particular duration of time, in respect of his invention. It is the part of the intellectual property right, which connotes with all those rights which are granted to any person for protecting its invention, process, discovery, composition or new useful development etc. from its further usage without any authentication. If more than two persons have jointly applied for patent license, both will own the patent separately.

Trademark One of the part of the intellectual property law, trademark signifies to the name, word, phrase, logo, image, design, symbol or combination of any or all of these elements. The trademark grants rights to the owner

which in turns may take or can commence legal proceedings in case of infringement of trademark.

Trade Secrets Trade secret points towards a formula, pattern, any instrument, design which is kept confidential and through which any business or trade can edge over its rival and can enjoy economic gain. Trade secrets can be anything from a chemical compound, manufacturing process, design or preserving materials or even a list of consumers or clients. It is also known as "confidential information" or "classified information". Though the definition of trade secret is variable as per the jurisdiction but there are following elements that are found to be same
i. ii. iii.

It is not known by the public. It provides some financial sort of gain to its holder. It involves reasonable efforts from the holder side for maintaining secrecy. The importance of data or information to him o for his r rivals. The ease by which information could be learned or duplicated by others.

iv.

v.

Utility Model

The utility model is the intellectual property right for protecting the inventions. It is somehow described as the statutory monopoly which is bestow upon for the fixed duration of time in exchange to the inventor for the offering of the sufficient teaching of the invention and permitting the other person, possessing the ordinary skills of the relevant art, of performing the invention. The rights granted under the utility model are somewhat identical to those conferred upon by the patent but are more considerable for using the term 'incremental inventions'

Geographical Indication Geographical Indication (GI) signifies to the name or sign, used in reference to the products which are corresponding to the particular geographical area or somewhat related to the origin like town, region or nation. Thus GI grants the rights to its holder which acts as the certification mark and shows that the specified product consists of the some qualities and is enjoying good reputation due to its origin from the specified geographical location. The Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement has defined the 'geographical indications rights' as the exclusionary rights for the indicator which identify the goods originated within the member nations territories, or area or region of that territory, where the reputation or other attributes of the goods is essentially related to the geographic origin of the place.

Industrial Design Rights

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Industrial design rights are defined as the part of the intellectual property rights which confers the rights of exclusivity to the visual designs of objects which are generally not popular utilitarian. It safeguards the appearance, style, design of the industrial object such as spare parts, textiles, furniture.

Advantages of Intellectual Property Rights Intellectual property rights help in providing exclusive rights to creator or inventor. It provides legal protection and offers them incentive of their work. Rights granted under the intellectual property act helps in socio and economic development.

Intellectual Property Rights in India India has defined the establishment of statutory, administrative and judicial framework for protecting the intellectual property rights in the Indian territory, whether they connotes with the copyright, patent, trademark, industrial designs etc. Tuning with the changing industrial world, the intellectual property rights have continued to strengthen its position in the India. In 1999, the government has passed the important legislation in relation to the protection of intellectual property rights on the terms of the worldwide practices and in accordance to the India's obligations under the Trade Related Aspects of Intellectual Property Rights. It consists of y

The Patents(Amendment) Act, 1999 which was passed on 10th March, 1999 in the Indian Parliament for amending the Patents Act of 1970 which in turns facilitate to establish the mail box system for filing patents and accords with the exclusive marketing rights for the time period of 5 years.

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The Trade Marks Bill, 1999 was passed in the India parliament during the winter session for replacing the Trade and Merchandise Marks Act, 1958. It was passed on 23rd December, 1999. The Copyright(Amendment) Act, 1999 was passed by both upper house and lower house of the Indian parliament and was later on signed by the Indian president on 30th December, 1999. The sui generis legislation was approved by both houses of the Indian parliament on 23rd December, 1999 and was named as the Geographical Indications of Goods (Registration & Protection) Bill, 1999. The Industrial Designs Bill, 1999 was passed in the Upper House of the Indian parliament for replacing the Designs Act, 1911. The Patents (Second Amendment) Bill, 1999 was introduced in the upper house of the parliament for further amending the Patents Act 1970 and making it compliance with the TRIPS(Trade Related aspect of Intellectual Property Rights). Laws relating to Internet, Web and Information Technology (Information Technology Act, 2000)

Along with the above legislative measures, the Indian government has introduced several changes for streamlining and bolstering the intellectual property administration system in the nation. Several projects concerning to the modernizing of the patent information services and trademark registry have been undergone with the help of the World Intellectual Property Organization/ United Nations Development Programme.

Trademark

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The trademark or trade mark, symbolized as the and , is the distinctive sign or indication which is used for signifying some kind of goods or/and services and is distinctively used across the business organization or by an individual for identifying and uniquely classifying the source or their products and/or services among consumers and making a distinction of its products or services from the other entities. One of the part of the intellectual property law, trademark signifies to the name, word, phrase, logo, image, design, symbol or combination of any or all of these elements. The trademark grants rights to the owner which in turns may take or can commence legal proceedings in case of infringement of trademark. However registration is not compulsory in trademark. The owner of common law trademark can also file the suit but in case of the unregistered mark, the protection granted will only be confined only to that geographical area within which it has been used or in that area into which it is expected to be expand.

Informally the term 'trademark' is used for distinguishing those characteristics or attributes which helps in identifying any individual. When the word 'trademark' is used in context of services rather than products, it may called service mark. When the trademark is used for describing the product or service, instead of making a distinction from the third parties then it is popularly called generalized trademark. As any sign which is attributed of doing the essential required functions of the trademark may be headed under the term 'trademark'. It may include various non-conventional signs like shapes(three dimensional trademarks), smells, sounds, moving images, taste, color and even texture. The extent to which these non conventional trade marks are recognized or even protected varies from one jurisdiction to another.

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Advantages of Trademarks The trademark owner is conferred upon the 'exclusionary rights' which says that the owner enjoys the right of using the registered trademark and can indicate it by using the symbols- and in relation of those goods and services for which the owner has registered the trademark. At the time of any infringement, the owner can take upon the case in the court. Trademark provides the guarantee for the unchanged quality and helps in creating and advertising the products and services in public.

Trademark Laws in India The Indian trademark law defines the trademark as the signature, device, word, invented word, letter, numeral, brand, name written in the particular style, the shape of goods other than those for which the mark is intended to be used, or any combination thereof or the combination of colors etc. Except in certain cases, the trademark may also signified by the name of living or dead person. The trademark helps in making an identification of the goods and services along with its origin. It helps the trademark holder to advertise its products or/and services and also creates a good image in the mind of its final consumer but the trademark chosen should be capable of making a distinction between the goods or services of different people. Furthermore, it should not be deceptively identical to the existing mark of the other person and should not be such that which is restricted in the act.

In India, any person who claims to be the trademark proprietor can apply for the trademark registration of the goods and services. For registration, the application can be filed in the Trademark Office, in whose jurisdiction the principal place of your business falls. If the principal office is not situated in India then the applicant can file the application in the trademark office in whose jurisdiction the lawyer appointed by the applicant is situated. In case it

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is the company which is yet to be formed then anyone can apply for the registration on the behalf of the company. It is prudent to make a proper search in the trademark office for ensuring that your registration may not be cancelled due to the similarity of the proposed mark to the already existing one. In India, the registration term of the trademark is 10 years which can be renewed further for next 10 years by paying the renewal fees. In India, only the trademark proprietor whose trademark has been registered can put the symbol into use. If any use the symbol without the registration of mark he/she will be held under illegal use of the trademark. If anyone is engage in selling or providing services by using the false trademark he/she will be entitle to the penalty of minimum 6 months which may extend to maximum of 3 years and with the fine of not less than Rs.50,000 and which can extend to Rs.2,00,000.

Trademark Infringement and Passing Off Trademark is the identification mark of any company or organization. A customer relates any trademark with the quality of products and reputation of the company that is using it. It is a distinctive name, word, phrase, symbol, logo, design, image, or a combination of these elements that identifies a product, service or firm that has been legally registered as the property of the firm. Trademarks grant the owner the right to prevent competitors from using similar marks in selling or advertising.

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There are few important functions of trademark: A trademark can be used for identifying and distinguishing a particular sellers goods from others. Trademark also shows the origin of the goods i.e. a customer can identify the manufacturer and also assume about the quality of goods that all goods bearing the particular trademark are of a particular quality desired by the customers. Trademarks are widely used for the advertisement purposes also which helps to customers in associating any good with the quality, reputation and goodwill of any company. So it is very important for any organization to take precautions while allowing any one to use its trademark because the name and reputation of the company is directly associated with the trademark. There has been various new concepts have emerged in relation to trademark due to the technological revolution in the communication, media and other areas and due to the increased knowledge and perception of individuals, business enterprises are showing more interest in registering non conventional marks such as colour marks, shape marks, smell marks, sound marks, advertisement slogans, trade dress etc. to capture the market. How it can cause damage to a Company: If any organization is using the registered trademark of another company without permission, that means it is not only committing a crime but also causing damage to the business of the company and damaging the brand name of that company. The organization might be using others trademark to use its market reputation and market stake to enhance its own business without extra efforts. But such companies are not using the exact trademark of other company but they generally go for use of similar marks and here the problem came in to existence. These kind of activities mainly fall under two heads Infringement and Passing Off.

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Infringement: Section 29 of the Trademark Act-1999 talks about various aspects related to infringement as given in S.29(1) that a registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. Other subsections describes that in course of the use of the trademark it is said to be infringing the rights of other company due to use of similar or identical trademark using for marketing of similar kind of goods and services or use of identical or deceptively similar trademark for any other kind of goods and services. It is further given in the Sub Section (9) of this section that the infringement can also be done by the spoken use of those words as well as by their visual representation. Passing Off: The specific description of passing off is not given in the trademark act but the courts have drawn its meaning from common law that if the infringement of trademark done in such a manner where the mark is not only deceptively similar to the trademark of other company but also creating confusion for the customers, which ultimately results in damage for business of the company.

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CASE RELATED TO IPR INFRINGEMENT OF TRADEMARK

The Coca Cola Company Vs. Bisleri International Ltd.


( In Delhi High Court)

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Background of the companies

The Coca Cola Company


Coca-Cola Company is a beverage company, manufacturer, distributor, and marketer of non-alcoholic beverage concentrates and syrups. The company is best known for its flagship product Coca-Cola, invented by pharmacist John Stith Pemberton in 1886. The Coca-Cola formula and brand was bought in 1889 by Asa Candler who incorporated The Coca-Cola Company in 1892. Besides its namesake Coca-Cola beverage, Coca-Cola currently offers more than 400 brands in over 200 countries or territories and serves 1.6 billion servings each day. The company operates a franchised distribution system dating from 1889 where The Coca-Cola Company only produced syrup concentrate which was then sold to various bottlers throughout the world who held an exclusive territory. The Coca-Cola Company is headquartered in Atlanta, Georgia. Its stock is listed on the NYSE Coca-Cola in india
Coca-Cola was launched India in India in 1993, giving a new thumbs up to the Indian soft drink market. In the same year, the Company took over ownership of the nations top soft-drink brand and bottling network which were the products of Bisleri International Ltd. erstwhile called Acqua Minerals Pvt. Ltd. Ever since, Coca-Cola India has made significant investments to build and continually consolidate its business in the country, including new production facilities, waste water treatment plants, distribution systems, and marketing channels.

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BISLERI INTERNATIONAL PVT. LIMITED Bi l i was ori i all an Italian company created by Felice Bisleri who first brought the idea of selling bottled water in Ind Parle Bisleri bought over ia. Bisleri (India) Ltd. in 1969 and started bottling water in glass bottles under the brand name Bisleri . Later Parle switched over to PVC non-returnable bottles & finally advanced to PET containers. In 1995 Ramesh J. Chauhan started expanding Bisleri operations. In 2003 Bisleri announced its venture to Europe. The brand name Bisleri is so popular in India that it is used asgeneric name for bottled water. Now the company Parle Bisleri runs its business with the name Bisleri International Pvt. Ltd.

Maaza is a Coca-Cola fruit drink brand marketed in India and Bangladesh, the most popular mango drink. Maaza was launched in 1976 in India. In India , Maaza was acquired by Coca-Cola India in 1993 from Parle-Bisleri along with other brands such as Limca, Citra, Thums Up and Gold Spot.

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COURT CASE
Court in which case held : HIGH COURT OF DELHI : NEW DELHI Case no. : CS (OS) No. 2166/2008 Reserved on: 16th September, 2009 Decided on: 20th October, 2009 Plaintiff : The Coca-Cola Company Defendent: Bisleri International Pvt. Ltd.

Facts of the case : 1. By an Agree ent between plaintiff and defendent dated Septe ber 18,
1993 the defendant s owners Mr. Ramesh Chauhan and Mr. Prakash Chauhan sold the trade marks, formulation rights, know how, intellectual property rights and goodwill etc. of their products THUMS UP, LIMCA, GOLD SPOT, CITRA and MAAZA amongst others to the plaintiff. The present case deals with the product MAAZA only. Though the defendant was the proprietor of its trademark, the secret beverage base for manufacturing MAAZA was with an affiliate company of the defendant known as Golden Agro Products which has now changed its name to Bisleri Sales Ltd.

2. On November 12, 1993, the plaintiff and defendant entered into a deed of assignment by way of which the following agreements as regards MAAZA were made : (i) Deed of Assignment to assign and transfer trademark MAAZA in India for a consideration of US 50,000 ; (iii) Transfer of know-how for a consideration of US 1,000,000; 1,000,000; (ii) Goodwill Assignment agreement for a consideration of US

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(iv) Confidentiality and non-use agreement with third party for a consideration of US 1,000,000 (v) Non-compete agreement with Mr. Ramesh Chauhan, his wife and Mr. Prakash Chauhan and his wife; (vi) General Assignment agreement; (vii) Agreement for compensation of relinquishment of franchise rights under Franchise Agreements with the defendant (viii) License agreement with Golden Agro Products Pvt. Ltd. 3. Because of the above-mentioned agreements, an affiliate of the Parle Group by the name of Parle Exports Ltd. cancelled the then existing franchise agreements, executed a new license agreement with the plaintiff and entered into a relinquishment of franchise rights agreements for a consideration of US 500,000.

4. Finally, in October 1994 the License Agreement for MAAZA between the plaintiff and Golden Agro Products Pvt. Ltd. was entered into and executed. It is the plaintiffs case that by this agreement all the trademarks, formulation rights etc. were irrevocably conveyed to the plaintiff forever. The defendant retained the trademark rights of MAAZA in respect of other countries where it had been registered.

5. In March 2008, the defendant became aware of the fact that the plaintiff had filed for registration of MAAZA trademark in Turkey. On September 7, 2008 the defendant no. 1 sent the plaintiff a legal notice repudiating the Licensing Agreement thereby ceasing the plaintiff from manufacturing MAAZA and using its trademarks etc. directly or indirectly, by itself or through its affiliates. As per the plaintiff, the notice claimed that the plaintiff had breached the said agreement by

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attempting

to

register

MAAZA

in

Turkey

as

the

agreements/assignments between the parties allowed the plaintiff to use MAAZA in India alone. The notice also stated the defendants intention to start using the trademark MAAZA in India. 6. The plaintiff has filed the present suit seeking permanent injunction and damages for infringement of trade mark and passing off as its claim is that the defendant has completely ignored the irrevocable and absolute transfer of the trademarks, formulations, intellectual property rights and know-how in favour of the plaintiff. 7. Further, the defendant has allegedly unauthorised permitted the manufacture of certain ingredients of the beverage bases of MAAZA to be manufactured by a third party in India by the name of Varma International located in Chittor, Andhra Pradesh and Indian Canning Industries also located at Chittor. The plaintiff has claimed that this is an infringement of the exclusive usage rights of its registered trademark no. 309362 in Class 32 of MAAZA in India. 8. The Delhi High Court passed an order dated October 15, 2008 restraining the defendant , its officers, employees, agents and sister concerns from using the mark MAAZA or any other deceptively similar trademark in relation to mineral, aerated water, non-alcoholic drinks and syrup and other preparation for making such beverages. The defendant no. 1 and its officers etc. were also restrained from using and/ or disclosing to any person the know-how, formulations, and other intellectual property used in the preparation of beverage bases and beverages sold under the trademark MAAZA. By the same order, two local commissioners were appointed to take inventory of the two locations in Chittor.

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9. On 13th January 2009 the plaintiff filed an application seeking to implead Mr.Vishal Varma, sole proprietor of Varma International and Ramesh Chauhan of Parle-Bisleri being necessary parties. It is mentioned in the plaint that the defendant had permitted M/s.Varma International to manufacture goods, the formulations and know-how etc. and whose premises the Local commissioner also visited on 15th October 2008.

10. The counsel on behalf of the defendant said that since the defendant had nothing to do with the proposed M/S Varma International, therefore, no reply to the same was necessary. The said application was allowed. Mr. Vishal Varma, sole proprietor of Varma International and Mr. Ramesh Chouhan were impleaded as defendant no. 1 and 2 respectively in the suit. 11. The court appointed two local commissioners being Mr. K. Parameshwar, Advocate and Ms. Altaf Fatima, Advocate to visit M/s. Varma International at, Chittor , Andhra Pradesh and Indian Canning Industries, Chittor , Andhra Pradesh respectively. The first of the two local commissioners found MAAZA labels and MAAZA embossing on empty and full bottles, duly reported in the report filed on 24 October, 2008. The defendant no. 1 has, in all of the applications discussed above, stated time and again that though M/s. Varma International is/may be producing the infringing labels/beverage, the plaintiff has nowhere shown any connection between defendant no. 1 and the said company. The plaintiff, in turn, has contended that an employee of the defendant no. 1, Mr. R.B. Varma, is the father of Mr. Vishal Varma owner of M/s. Varma International, and the know-how, formulations etc. have been conveyed by the said employee to the

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latter. The impleadment of Mr. Vishal Varma has been allowed in the order dated 13th January, 2009. 12. By its order dated May 12, 2009 this court observed that the defendant no. 1s application under Order XXXIX Rule 4 would be taken up for hearing only if the defendant no. 1 succeeds in showing that this court has no territorial jurisdiction. Thus the courts decision on any other matter will be of no avail. 13. The defendant no. 1 has prayed for the vacation of this courts order dated 15 October, 2008 primarily objecting on the ground that this court lacks jurisdiction to hear the present suit. The grounds used by the plaintiff in the plaint to state that this court has jurisdiction are that the defendant no. 1 is carrying on business within its jurisdiction, that the defendant no. 1 has intention to use the infringing trade mark within its jurisdiction, that the legal notice conveying this illegal intention originated in New Delhi and that the defendant no. 1 has published its intention to use the same in the Delhi Edition of the newspaper Times of India. 14. The plaintiff in its reply has denied the contents of the application filed by the defendant no. 1. The plaintiff has further supplemented his submissions by adding that the license agreement dated 13th May, 2004 has originated within the jurisdiction of this Court. A newspaper report showing the defendant no. 1s intention to use the trademark MAAZA in India has been published in the Delhi edition of Times of India. It is denied that the defendant no. 1 is not carrying on business within the jurisdiction of this court as the defendant no. 1 has a factory in Delhi from where the defendant no. 1 is operating a sales and distribution infrastructure similar to that in Mumbai and has an extensive market share in and around Delhi. Further it is alleged that

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Mr. Ramesh Chauhan, who is the person with whom the correspondence was exchanged and who has now been impleaded as defendant, is residing in New Delhi. The Senior counsel for the plaintiff has argued that the pleadings and the reports of the Local Commissioners along with documents filed clearly establish that this court has jurisdiction to entertain the suit for infringement of trademark under Section 134 (2) of the Trademark Act, 1999 and Section 20(c) of the Code of Civil Procedure, 1908. He has also argued that the notice sent by the defendant no. 1 itself speaks of the latters intention to use the mark all over India and the said threat also creates jurisdiction of this court. 15. The plaintiff has invoked the territorial jurisdiction of this court on various counts. Para 28 of the plaint reads as under : 28. The defendant no. 1 us carrying on business within the jurisdiction of this Honble Court and also has the intention to use the trademark MAAZA within the jurisdiction of this Honble Court. The legal notice through which the intention to use the mark has been conveyed to the plaintiff has originated in New Delhi within the jurisdiction of this Honble Court. The defendant no. 1 has also published its intention to use the mark in India, in the Delhi edition of Times of India. 16. The defendant no. 1 has stated that it has no business within this courts jurisdiction except a factory where mineral water for Bisleri is bottled and sold. The registered office of the defendant no. 1 is in Mumbai. Further, all correspondence between the parties has been to and from the defendant no. 1s Mumbai office. The agreements executed between the parties were also so executed either in Atlanta or in Mumbai.

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17. As regards the question of its intention to use the infringing trade mark, the defendant no. 1 has contended that it does not intend to do any such thing within this courts jurisdiction as the said trade mark is the registered trade mark of the plaintiff. As far as the notice originating in New Delhi is concerned, the defendant no. 1 stated that the legal notice dated 7 September, 2008 gives the Mumbai address only and hence the plaintiff is attempting to mislead this court. Relating to the article in Times of India, the defendant no. 1 has stated that the article originated in Mumbai and was also carried in the Delhi edition since the latter is a sister concern of Times of India, Mumbai.

Judgement of the case


The court dismissed Bisleris application for vacation of the ex-parte interim injunction against use of the Maaza trademark in India including the use for purposes of export from India as well as their application for rejection of the suit on the grounds that the Delhi High Court lacked the requisite jurisdiction. The Delhi High Court has asked the Ramesh Chauhan-led Bisleri International to stop selling the mango flavored soft-drink under the trade name Maaza in India, giving Coca-Cola a victory in a trademark case. The court passed an order restraining The Bisleri International Ltd, its officers, employees, agents and sister concerns from using the mark MAAZA or any other deceptively similar trademark in relation to mineral, aerated water, non-alcoholic drinks and syrup and other preparation for making such beverages. The company and its officers etc. were also restrained from using and/ or disclosing to any person the know-how, formulations, and other intellectual property used in the preparation of beverage bases and beverages sold under the trademark MAAZA.

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Students Analysis and Academic Learning


Indian Contract Act , 1872 The Case of Coca-Cola vs Bisleri International ltd. Falls under the category of violation of Intellectual property rights (IPR) Law. The contract signed between the parties was for the complete transfer of IPR from Bisleri to CocaCola. The essential elements of the signed contract can be linked to Indian Contract Act , 1872 and are discussed below. 1. Offer and Acceptance : An offer was made by Coca-Cola company to acquire all the IPR, know-how, formulations and Trademark of soft drinks from Bisleri International Ltd. The offeree accepted it and the contract was signed. 2. Legal Relationship : The contract was documented in favour of interest of both the parties. Both the parties were aware of the legal consequences. 3. Lawful consideration : Bisleri International Ltd. Asked for a lawful consideration of demands. 4. Competency to Contract : The contract was signed between two multi-million companies. The people signing the contract on their behalf were competent to sign it. 5. Consent between the parties : Although the contract was signed with good consent of both the parties but after sometime the consent took a shape of fraud committed by Bisleri International Ltd. 6. Legality of objects : The objects and the consideration were legal in contract bearing no harm to any public or property 7. Certainity of objects : The contract was certain and clear not vague. USD 3.55 million from coca-cola company to transfer its IPRs. The consideration was made by the party as per the

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8. Discharge of contract : Although the contract was breached due to involvement of fraud but it was not terminated as the plaintiff didnt appeal for termination in the court. 9. Legal Formalities : Since the contract was a business contract and renowned MNC was involved , all the formalities were documented on paper and signed by both the parties.

Intellectual property Rights The formulations and the process of manufacture of soft drinks was patented by Bisleri International Ltd. The trademarks of soft drinks were also registered by them. However after signing the contract with Coca-Cola company and deciding on all the legal issues, all the IPRs and trademarks were transferred to Coca-Cola which now becomes the primary owner of Intellectual property. Thus Bisleri International Ltd. interfering with the terms of contract was held liable for breach of contract and hence was accused. IP laws are extremely important for the scientific development of a country. Strong IP legislations ensure the progress in varied fields and result in the growth of a country's knowledge bank. However, it is of utmost importance that the strong IP laws must be ably supported by an equally strong enforcement mechanism as well. The Patent Act, 1970 provides for the enforcement of patents by way of suits for infringement. In dealing with IPR suits, the Indian Courts follow the traditional principles and procedures of civil litigation

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References:
1. http://delhihighcourt.nic.in/ 2. http://thestar.com.my/lifestyle/story.asp?file=/2007/7/31/lifefoc us/18430619&sec=lifefocus 3. http://www.indiainbusiness.nic.in/investment/ipr.htm 4. http://www.dateyvs.com/gener03.htm 5. http://www.legalserviceindia.com/article/l226-TrademarkInfringement-&-Passing-Off.html 6. http://www.wikipedia.org/ 7. http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm 8. http://www.indianindustry.com/intellectual-property-rights/

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