Case Title: CARLSBERG BREWERIES A/S v.
The Delhi High Court has issued an ad interim injunction against Tensberg Breweries Industries Private Limited and other entities for using a mark that is similar to the trademark of multinational brewer Carlsberg.
The court further stated that the shape of the defendants' bottle and can looks to be deceptively similar to that of Carlsberg.
"Beer bottles and cans are not purchased with great care, but rather in a more casual manner. Using the test of an unwary consumer with an imperfect memory, the two marks and their trade dress appear to be deceptively similar and likely to deceive and confuse such a consumer "Justice Navin Chawla stated.
In his decision in favour of Carlsberg Breweries on the application for temporary relief, Justice Navin Chawla noted a phonetic similarity between the two marks 'Tensberg' and 'Carlsberg.' The next hearing date is October 19, 2022.
"The arrangement of the markings, as well as the appearance of the deceptively similar crown, appear to suggest the defendants' effort to come as near to the plaintiff's mark as possible.
Beer bottles and cans are not purchased with much care, but rather in a more casual manner. Using the test of an unwary consumer with a hazy memory, the two marks and their trade dress appear to be deceptively similar and likely to deceive and confuse such a consumer "according to the Court.
Carlsberg, which had registered its trademark in 1949, filed a complaint with the Court against Tensberg and other corporations, stating that the manufacturer was promoting its beer in a deceptively similar bottle, causing customer confusion.
Tensberg Breweries, on the other side, accused Carlsberg of misrepresentation, claiming that they had been promoting their products with the disputed mark and packaging since 2018. It was further asserted that there were other marks registered with the suffix 'BERG,' and that because the prefixes of the two marks were different, there could be no question of confusion caused by the use of those words.
Making preliminary observations against Tensberg, the Court concluded that there was no doubt about Carlsberg being the proprietor and prior adopter of its mark, giving it a better right than Tensberg, who adopted its mark in India only in 2018, without holding registration in the same. "The illustration of the plaintiff's and defendants' beer bottles and cans has been reproduced above. At first glance, the shape of the defendants' bottle and Can 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 stated.
The court further stated that a delay in prosecuting an infringement allegation cannot be used to allow such infringement to continue. It further stated that the majority of the accused are newly formed corporations.
The court also said that defendants would have to establish that the numerous marks with the suffix 'Berg' are being utilised for marketing the items.
It went on to say that "in the present case, it is not only the use of the mark alone but also the get-up of the product, that is, the bottle and the Can, which prima facie indicates the defendants' intent to ride on the plaintiff's reputation and goodwill, thereby causing confusion and deception in the minds of unwary consumers."
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