[Breezer v. Freez Mix] Delhi High Court provides interim relief to Bacardi in trademark suit

The Delhi High Court on Friday granted interim relief to alcohol manufacturer Bacardi (plaintiff) in a trademark dispute relating to its alcoholic beverage Breezer, by restraining makers of a non- alcoholic beverage 'FREEZ Mix' from using the trademark 'FREEZ' or any other mark, label, sign, device or name identical to 'BREEZER' (Bacardi and Company Ltd. vs Bahety Overseas Private Ltd. & Ors.)..Single-judge Justice C Hari Shankar ordered Bahety Overseas Private Ltd., the manufacturer of 'FREEZ Mix' to restrain from using name, device or label similar to Breezer, during the pendency of the suit filed by Bacardi.The Court said that the mark 'FREEZ Mix' and the shape of the bottle in which it was sold were deceptively similar to that of Breezer. The names were also phonetically similar, the Court observed."The plaintiff, therefore, has, in my view, made out a prima facie case for grant of interlocutory injunction on the basis of infringement of its registered trademarks," the Court held.Breezer is a rum-based beverage mixed with various fruit essence which is manufactured by Bacardi. Bacardi also held trademark registrations for the word mark 'BREEZER' in Classes 32 and 33. The shape of the bottle in which Breezer was sold had also been granted registration as a trademark.The defendants, a manufacturer of non-alcoholic beverage was selling its product under the mark 'FREEZ Mix'.Bacardi moved the High Court by way of the present suit against the same. With the pleadings in the suit yet to be complete, Bacardi sought interim relief against Bahety.The question before was whether the “BREEZER” mark of the plaintiff and the “FREEZ” mark of the defendants were confusingly or deceptively similar or likely to cause an association between the defendants and the plaintiff.In order to examine the same, the Court called for samples of both bottles of 'Breezer' and 'FREEZ Mix' as sold in the market. Photographs of the bottles produced were also placed on record.After a thorough examination, the Court answered the question in the affirmative holding that the use of the trademark 'FREEZ Mix involved the likelihood of creating an impression of association, in the minds of the public.The Court also carefully compared the shape of the bottles and observed,"(i) the shape of the Defendant’s bottle is identical to that of the Plaintiff, in respect of which the Plaintiff has a valid and subsisting trademark registration, (ii) both bottles have an identical ‘champagne style base’, (iii) the neck design of the bottles is also identical,(iv) the defendant has used colours on the its label, cap and the bottle identical to those used on the plaintiff’s bottles.Thus, the Court asserted that the makers of 'FREEZ Mix' had consciously attempted to adopt a trade dress so similar to that of Bacardi's product that it would lead an uninformed and unwary customer to justifiably presume an association between the two marks.With regards to the font on the bottle, the Court observed that were was indeed some resemblance between the erstwhile 'Breezer' logo and the current 'Freez' one and added,"At the same time, the “FREEZ” mark of the defendants does bear some similarity in its letters with the earlier “ Breezer” mark of the plaintiff. In fact, the manner in which the first and the last letters of the word are in larger sizes and the size decreases towards the middle of the word, resulting in a curved structure of the word was similar."The Court also reckoned that if one were to very strictly and minutely examine the two bottles, small differences would prop up. However, the goodwill in the public psyche in respect of the “Breezer” mark of the plaintiff, Bacardi, was still very much there, leading the unsuspecting public to believe that the similar lettering meant that the products were similar. "Explained in alternate terms, it cannot be open to the defendants to contend that it can use a mark which is confusingly similar to the earlier mark of the plaintiff, with which the public continues to associate the plaintiff’s product even after the plaintiff’s mark has changed, or which would result in an association in the minds of the public between the product of the defendants and the plaintiff," the Court elaborated.Apart from this, the Court also said that the two marks were phonetically similar and that the defendant, Bahety, had cleverly and deliberately registered 'Freez' as single word mark, with “mix” figuring in disproportionately small letters as compared to “FREEZ” on the label."There can be no doubt that “BREEZ” and “FREEZ” are phonetically similar. The mere addition of the second minor syllable “er” in the former mark cannot, in my view, render the marks phonetically dissimilar, especially given the manner in which “BREEZER” is pronounced in English, with emphasis being laid on “BREEZ”, “er” being, phonetically, the minor syllable," the Court said.In view of the above, the Court granted interim relief to Bacardi.Senior Advocate Jayant Mehta and advocate Anirudh Bakhru appeared for the plaintiff, Bacardi. Advocate Pranay Sarkar appeared for the defendants, Bahety Overseas. .[Read Judgment]