Prerna Gala
Published on: September 19, 2022 at 20:18 IST
Tensberg Breweries Industries Private Limited and other businesses have been ordered to stop using a mark that is confusingly similar to the trademark of the international brewer Carlsberg by the Delhi High Court.
The court further noted that the defendants’ bottle and can shapes appear to be misleadingly similar to those of Carlsberg.
“Beer Bottles and Cans are not bought with minute scrutiny but in a more casual manner. Applying the test of an unwary consumer with imperfect recollection, the two marks and their trade dress, prima facie appear to be deceptively similar and likely to deceive and confuse such consumer,” said Justice Navin Chawla in the order.
Ruling in favour of Carlsberg Breweries on the motion for temporary relief, Justice Navin Chawla also ruled there was a phonetic similarity between the two marks “Tensberg” and “Carlsberg”.
“The placement of the marks, the appearance of the deceptively similar crown, also prima facie reflects the intention of the defendants to come as close to the plaintiff’s mark as possible. Beer Bottles and Cans are not bought with minute scrutiny but in a more casual manner.”
“Applying the test of an unwary consumer with imperfect recollection, the two marks and their trade dress, prima facie appear to be deceptively similar and likely to deceive and confuse such consumer,” the Court said.
Carlsberg, which had filed a lawsuit in court against Tensberg and other businesses, claimed that the manufacturer was marketing its beer in a misleadingly similar bottle in an effort to confound consumers.
Carlsberg had registered its trademark in 1949.
Tensberg Breweries, on the other hand, claimed that Carlsberg had misrepresented itself and had been promoting its goods using the disputed mark and packaging since 2018.
Additionally, it was asserted that since other marks bearing the suffix “BERG” had already been registered, there was little chance that the use of those words could have confused consumers.
The Court stated in its prima facie arguments against Tensberg that Carlsberg was unquestionably the owner and original adopter of the mark, giving it a superior claim over Tensberg, who only used the mark in India in 2018 without having a registration for it.
“The pictorial depiction of the bottle and Can of the plaintiff and the defendants’ beer has been reproduced herein above.”
“Prima facie, the shape of the bottle and the Can adopted by the defendants appears to be deceptively similar to that of the plaintiff; with the same colour green for the bottle, and green/white for the Can,” the court said.
The court further declared that a claim of infringement cannot be excused from prosecution because of a delay in doing so.
Additionally, it stated that the majority of the defendants are recently incorporated businesses.
The court stated that defendants would have to demonstrate that these marks are being used for marketing the items in response to the claim that there are several marks with the suffix “Berg.”
It added, “…In the present case, it is not only the use of the mark alone but also get-up of the product, that is, bottle and the Can which prima facie indicates the intent of the defendants to ride on the reputation and goodwill of the plaintiff, thereby, causing confusion and deception to the minds of unwary consumers.”