Delhi HC Grants Interim Relief To Alcoholic Beverage Manufacturer For Its Product 'BREEZER' Against Allegedly Infringing Mark 'FREEZ'

The Delhi High Court has granted interim relief to Bacardi and Company Ltd., engaged in manufacturing of alcoholic beverage BREEZER, by restraining the defendants from using the mark  FREEZ Mix, till the pendency of the suit.

Justice C Hari Shankar observed that the two marks are phonetically similar and that the latter had consciously attempted at adopting a trade dress so similar to that of the plaintiff as would lead an uninformed and unwary customer to justifiably presume an association between the two marks..

The Bench was dealing with a trademark infringement suit filed by BREEZER against the defendants, which manufactured non-alcoholic fruit-based beverages under the mark "FREEZ Mix".

Senior Advocate Jayant Mehta appearing for the plaintiff submitted that the overall presentation of defendants' product was consciously designed as to come "as close as possible" to the plaintiff's product, so as to deceive a consumer into believing an association between their products.

On the other hand, it was submitted by Advocate Pranay Sarkar appearing for the defendants that there was no visual similarity between the BREEZER logo and the logo of the defendants. It was also argued that the two were not phonetically similar at all.

"Though the defendants' registration, on the Register of Trademarks, is for the word mark "FREEZMIX", what is shown to the public is the word "FREEZ" in disproportionately large letters with the suffix "mix" in such small letters that, at a plain glance, it is hardly noticed. The existence of the suffix "mix" therefore, cannot be a basis to hold that the public is not likely to be confused between the mark of the defendants and the mark of the plaintiff, or to draw an association between the two," the Court observed.

Agreeing to the submission that the two trademarks were not visually similar, however the Court added that "FREEZ" mark of the defendants had some similarity in its letters with the earlier mark of the plaintiff.

"…I am of the prima facie opinion that the use, by the defendants of its "FREEZ" mark has every likelihood of creating an impression of association, in the minds of the public, between the mark of the defendants and the plaintiff's establishment," the Court added.

"FREEZ" and "BREEZER" are also, in my view, phonetically similar. What is required is phonetic similarity and not phonetic identity. Courts have held "Amritdhara" and "Lakshmandhara", "Aristoc" and "Rysta" and "Gluvita" and "Glucovita" to be phonetically similar. In Aristoc, the "manner in which the words are pronounced in English" was held to be significant," it added.

The Court thus observed that prima facie, the defendants had consciously attempted at adopting a trade dress so similar to that of the plaintiff as would lead an uninformed and unwary customer to justifiably presume an association between the two marks.

"Where an attempt to confuse or deceive is discernible, the court leans in favour of finding the attempt to have been successful, rather than a failure. Dishonesty, in cases of intellectual property infringement, imperils the case of a defendant to no insubstantial extent," the Court said.

Allowing the application, the Court said that there was a prima facie case for grant of interlocutory injunction on the basis of infringement of the plaintiff's registered trademarks.

Case Title: BACARDI AND COMPANY LIMITED v. BAHETY OVERSEAS PRIVATE LIMITED & ORS.

Click Here To Read Order