'Beer Bottles And Cans Are Not Bought With Minute Scrutiny': Delhi High Court On Trademark Dispute Between Breweries

The Delhi High Court has passed an ad interim injunction against Tensberg Breweries Industries Private Limited and other companies, for using a mark similar to multinational brewer Carlsberg's trademark.

The court also said the shape of the bottle and can adopted by defendants appears to be deceptively similar to that 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 the Justice Navin Chawla in the order

Ruling in favour of Carlsberg Breweries on the application seeking interim relief, Justice Navin Chawla also said 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, who had registered its trademark in 1949, moved the Court against Tensberg and other companies, alleging that the manufacturer was marketing its beer in a deceptively similar bottle so as to cause confusion in the minds of the general consumers.

On the other hand, Tensberg Breweries accused Carlsberg of misrepresentation and argued that they have marketing its products with the impugned mark and packaging since 2018. It was also argued that there were other marks which were registered with the suffix 'BERG' and that since prefix of the two marks were different, there cannot be any question of cause of confusion by use of those words.

Making prima facie observations against Tensberg, the Court opined that there was no doubt regarding Carlsberg being the proprietor and prior adopter of its mark, thereby having a better right over Tensberg, who adopted its mark in India only in 2018, without holding registration in the same.

"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 also said that delay in prosecution of a claim of infringement, cannot be a ground to allow such infringement to continue. It also said most of the defendants are companies which have been only recently incorporated.

On the argument that there are various marks with suffix 'Berg', the court said defendants would have to show these marks are being used for marketing the products.

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 mind of unwary consumers."

The matter will now be heard on October 19.

Title: CARLSBERG BREWERIES A/S v. TENSBERG BREWERIES INDUSTRIES PVT. LTD. & ORS.

Click Here To Read Order