"Consumers of scotch whiskey educated, can distinguish bottles of two brands:" Madhya Pradesh High Court denies relief to Pernod Ricard

The Madhya Pradesh High Court recently observed that consumers of scotch whiskey are educated persons belonging to affluent class of society and can easily distinguish between bottles of two different brands. [Pernod Ricard India Private Limited v. Karanveer Singh Chhabara].The Court made the observation while rejecting Pernod Ricard’s appeal to restrain an Indore-based company, JK Enterprises (defendant) from manufacturing beverages under ‘London Pride’ mark.Pernod Ricard sought temporary injunction against JK Enterprises alleging infringement of its ‘Blenders Pride’ trademark and trade dress of 'Imperial Blue' bottle.It accused defendant JK Enterprises of using ‘London Pride’ mark to deceive customers.The division bench of Justice Sushrut Arvind Dharmadhikari and Justice Pranay Verma said the products of the two brands involve ‘premium’ or ‘ultra premium’ whisky whose consumers are “educated and discerning type”.“It can be safely presumed with a sufficient deal of certainty that the consumers of such products would be mostly literate and having reasonable intelligence to distinguish between the bottles of Blenders Pride/Imperial Blue and that of London Pride,” it added..A commercial court in Indore had earlier dismissed Pernod Ricard’s application for temporary injunction.In appeal, Pernod Ricard said they have been using the ‘Blenders Pride’ mark since 1995. It also alleged that the whiskey of defendant was being sold by putting label, using packaging, getup and trade dress deceptively similar to its 'Imperial Blue' whisky..Comparing the bottles of Imperial Blue and London Pride, the Court observed that overall appearance of the defendant’s mark cannot be said to be deceptively similar to the marks of Pernod Ricard.The Court also found the shape of the bottles different. With respect to their boxes, the Court said a customer can easily make out the difference.“Examining the marks of plaintiffs with the mark of defendant as a whole, neither there is any visual nor phonetic nor structural similarity between any of the boxes or bottles of the plaintiffs with that of the boxes or bottles of the defendant,” it added.The Court also noted that Pernod Ricard does not possess any registration in respect of the colours used in its Imperial Blue mark or in any individual part of the design including the dome shape..On the commonality of word ‘Pride’ in 'Blenders Pride' and 'London Pride', the Court said Pernod Ricard has registration in the name of ‘Blenders Pride’ and not ‘Pride’. "Protection of trademark is available only for a complete trade mark and not any word therein unless the same is registered as a whole as well as in part as separate trade mark," it added.'Pride' is a noun and is of common usage which even otherwise cannot be registered being a generic word, the Court opined. It further said that mere by use of the word ‘Pride’ by the defendant, there cannot be any misconception or misapprehension in the mind of the consumer."The first word of the trade mark of plaintiffs is ‘Blenders’ whereas that of the defendant is ‘London’. There is absolutely no similarity in them leave aside any dissimilarity," the bench said. .Thus, the High Court in conclusion found no error in the trial court’s finding that there was no similarity between the two marks. However, the Court directed the trial court to ensure the suit filed by Pernod Ricard is decided within a period of nine months.Senior Advocate Amit Agrawal with advocate Manoj Manav represented the appellant Pernod RicardSenior Advocate SC Bagadiya and advocate Ayush Jain represented the defendant. [Read Judgment]