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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 )



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Index

1. Acknowledgement««««««««««««« 32. Indian Contract Act, 1872««««««««««. 43. Essential Elements of a Contract «««««««. 44. Intellectual Property Law (IPR) «««««««... 7

i. Types of IPR ««««««««« 8ii. Advantages of IPR ««««««« 11

iii. IPR in India «««««««««.. 11

5. Brief Explanation on Trademark «««««««. 136. Discussion on

Trademark Infringement , Passing Off «««««.. 157. Case Related to IPR Infringement of Trademark«.. 18

i. Background of the companies«««. 19ii. Court Case ««««««««««.. 21

iii. Judgement of the Case...«««««. 278. Student Analysis and Academic learning ««««. 289. References««««««««««««««««. 30

Acknowledgement



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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 todeliver 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 co-operation extended during my study and search for materials in the precinctsof the library.

Last but not the least, we are very thankful to my parents and to all my friendsfor their constant source of encouragement and motivation to prepare the casesuccessfully.

THE INDIAN CONTR ACT ACT, 1872



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iii. is not disqualified from contracting by any law to which he issubject

4. Free consent -According to Section 13, " two or more persons are saidto 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 bycoercion 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 PenalCode, or the unlawful detaining, or threatening to detain, any

property, to the prejudice of any person whatever, with theintention of causing any person to enter into an agreement.

ii. Undue influence (Section 16): "Where a person who is in a position to dominate the will of another enters into a contract withhim and the transaction appears on the face of it, or on theevidence, to be unconscionable, the burden of proving that suchcontract was not induced by undue influence shall lie upon the

person in the position to dominate the will of the other."

iii. Fraud (Section 17): "Fraud" means and includes any of thefollowing acts committed by a party to a contract, or with hisconnivance, 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

iv. Misrepresentation (Section 18).: Misrepresentation means andincludes -

i. Making a statement in a manner that is unwarranted by theinformation 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 oneclaiming under him, by misleading another to his prejudice or to the prejudice of anyone claiming under him.



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iii. Causing, however innocently, another party to commit amistake as to the substance of the thing which is the subject of the agreement.

v. Mistake of fact (Section 20):"Where both the parties to anagreement are under a mistake as to a matter of fact essential tothe agreement, the agreement is void." Mistake may be of two types:

i. Mistake of Lawii. Mistake of Fact

Mistake of Law is based no the principle of 'Ignorantia Juris NonExcusat' which means ignorance of law is no excuse.Mistake of fact may be either a bilateral mistake or even aunilateral mistake.

5. Legality of objects- Every agreement of which the object or consideration is unlawful is void. The consideration or object of anagreement is unlawful if²it is forbidden by law; or it is fraudulent; or involves or implies injury to the person or property of another; or theCourt regards it as immoral, or opposed to public policy.(sec.23).

6. Void agreement ± According to sec.2 (g). A void agreement is onewhich is not enforceable by law. Such an agreement does not give riseto any legal consequences and is void ab initio.

7. Certainity and possibility of performance -The agreement must becertain and not vague or Indefinite. [sec.29].

8. Legal formalities - The document in which the contract isincorporated is to be stamped. In some other cases, a contract, besides

being a written one, has to be registered. Thus where there is astatutory requirement that a contract should be made in writing or inthe presence of witnesses or registered, the required statutoryformalities 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 notcontemplate legal relationship; as such they are not contract.

Intellectual Property Right



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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 inthe 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 IndustrialProperty 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 Industrial designs

y Scientific discoveries

y Protection against unfair competition

y Literary, artistic and scientific works

y Inventions in all fields of human endeavor

y Performances of performing artists, phonograms and broadcasts

y Trademarks, service marks and commercial names and designations

y All other rights resulting from intellectual activity in the industrial,

scientific, literary or artistic fields.



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Types of Intellectual Property Rights

Intellectual Property Rights signifies to the bundle of exclusionary rights

which can be further categorized into the following heads-

y 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.

y 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 grantedto 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.

y 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



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

infringement of trademark.

y 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. It is not known by the public.

ii. It provides some financial sort of gain to its holder.

iii.

It involves reasonable efforts from the holder side for maintaining secrecy.

iv. The importance of data or information to him or for his

rivals.

v. The ease by which information could be learned or

duplicated by others.

y Utility Model



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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'

y 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 fromthe 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.

y 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. Itsafeguards 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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y 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.y 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.

y 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.

y The Industrial Designs Bill, 1999 was passed in the Upper House of the Indian parliament for replacing the Designs Act, 1911.

y 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).

y 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 âÄ¢ and Â®, 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 anindividual 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 filethe 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 saysthat the owner enjoys the right of using the registered trademark and can

indicate it by using the symbols- âÄ¢ and Â® 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 finalconsumer 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 becancelled 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 Â® 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/shewill 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 seller¶s

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 thecourts 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

INFRING

EMENT OF TR A

DEMA

RK

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 nation¶s

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 or i i all an Italian company created by Felice Bisler i who f irst

brought the idea of selling bottled water in India. Par le Bisler i bought over

Bisler i (India) Ltd. in 1969 and star ted bottling water in glass bottles under the

brand name µBisler i . Later Par le switched over to PVC non-returnable bottles

& f inally advanced to PET containers. In 1995 R amesh J. Chauhan star ted

expanding Bisler i operations. In 2003 Bisler i announced its venture to Europe.

The brand name Bisler i is so popular in India that it is used asgener ic

name for bottled water. Now the company Par le Bisler i runs its business with

the name Bisler i International Pvt. Ltd.

M Z

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 def endent dated Septe ) ber 18,

1993 the def endants 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 def endant was the

proprietor of its trademark, the secret beverage base for manufacturing

MAAZA was with an affiliate company of the def endant 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 1,000,000;

(ii) Goodwill Assignment agreement for a consideration of US

50,000 ;

(iii) Transfer of know-how for a consideration of US 1,000,000;



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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 andMr. 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 existingfranchise 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 plaintiffµs 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 defendant¶sintention 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.



24

9. On 13th January 2009 the plaintiff filed an application seeking to

implead Mr.Vishal Varma, sole proprietor of Varma International andRamesh 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 CanningIndustries, 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



25

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. 1µs 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 courtµs decision on any other

matter will be of no avail.

13. The defendant no. 1 has prayed for the vacation of this courtµs 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. 1µs 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



26

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 latterµs 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 Honµble Court and also has the intention to use the

trademark MAAZA within the jurisdiction of this Honµble 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 Honµble 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

courtµs 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. 1µs Mumbai office. The agreements

executed between the parties were also so executed either in Atlanta or

in Mumbai.



27

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 courtµs jurisdiction as the said trade mark isthe 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 carriedµ in the

Delhi edition since the latter is a sister concern of Times of India,

Mumbai.

Judgement of the case

The court dismissed Bisleri¶s 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 usingand/ 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.



28

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 Coca-

Cola. 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 softdrinks 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 USD 3.55 million from coca-cola company to

transfer its IPRs. The consideration was made by the party as per the

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.



29

8. Discharge of contract : Although the contract was breached due to

involvement of fraud but it was not terminated as the plaintiff didn¶t

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 thegrowth 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



References:

1. http://delhihighcourt.nic.in/

2. http://thestar.com.my/lifestyle/story.asp?file=/2007/7/31/lifefocus/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-Trademark-

Infringement-&-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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