India: "TIGER HILL"; Beer Free of Charges of Deception

Last Updated: 14 June 2006
Article by Manisha Singh

Asia Pacific Breweries Ltd, an incorporation in Singapore manufactures beer under the trademark ‘TIGER Beer’. Asia Pacific Breweries claims to be the owner and user of the mark since 1932. The company owns 14 Breweries in eight countries round the world.

Superior Industries Ltd, a Company under the Indian Companies Act, 1956 is also a user of the mark TIGER beer. In this event, Asia Pacific Breweries filed a suit for permanent injunction restraining Superior Industries from using the mark.

In the course of their pleadings, Asia Pacific Breweries presented a certified extract from the Register of Trade Marks in respect of their registration. They further stated that their labels had been registered in 58 countries from Europe, Asia, America and Africa but no certificate in relation to any such registration was presented. Asia Pacific Breweries stated that their product was brewed by a highly automated process to ensure high standards and to maintain consistency in quality in all of its markets round the world. TIGER beer claims to have been acknowledged as the WORLD’S BEST BEER and has the distinction of "gold medal beer". Further, the brand TIGER was said to have become synonymous with TIGER BEER and the recipient of accolades from some of the leading newspapers and journals. Several such acclaims were stated for Asia Pacific Breweries to substantiate that it enjoyed tremendous goodwill and reputation all around the world. It was further pleaded that they were already making sales to importers, Indian Airlines, ITDC, embassies and hotels and planned to develop its market in India, through other channels post the lift of the Govt. ban on sales of beer by overseas companies.

In June 2001, on learning of Superior Industries’ brand TIGER HILL, Asia Pacific Breweries communicated with them and negotiations were made for an agreeable settlement, though the deal fell out. Asia Pacific Breweries alleged Superior Industries of an infringement of its mark and an attempt to pass-off its goods to an unwary purchaser of average intelligence, as that sold by Asia Pacific Breweries.

Superior Industries contesting the suit, denied averments regarding the claimed trans-border reputation held by Asia Pacific Breweries. They contended that Asia Pacific Breweries hadn’t entered the Indian markets and supply to certain dealers or select customers in a clandestine manner did not prove their popularity amongst ordinary customers in the country. Further, averments regarding the registration of the trademark in India and abroad were also denied. They claimed to be users of the mark TIGER HILL since the capture of the post during the Kargil war. They further asserted that the trademark and device of both the brands being materially different with no phonetic or visual similarity, having different packaging and a stark difference existent in pricing (that of Asia Pacific Breweries about six times higher), there subsisted no likelihood or confusion in the minds of the consumers. It was further contended that TIGER was a common language word and Asia Pacific Breweries cannot claim that monopoly over it.

Asia Pacific Breweries also filed an application for interim injunction, which was contested on similar grounds. It was also pointed out that when the case was taken up for the first time in May 2002, summons were ordered but no ex parte injunction was granted.

The Court taking note of various contentions placed forth it stated that Asia Pacific Breweries was not in a position to seek a grant for injunction on the basis of trans-border reputation. The fact that they had not placed on record any evidence to show worldwide registrations or to prove voluminous sales in or outside India or even extensive advertisements in India /foreign countries.

Turning its attention to the contention regarding deception of an unwary customer of average intelligence and imperfect memory, the Court stated that a prima facie case for grant of injunction was made out in a passing off action.

Taking note of Asia Pacific Breweries’ non-submission of registration certificates in respect of labels, the Court reiterated that mere registration was insufficient to prove the actual user of the Trademark. They further said that unless the two competing labels were available for comparison, it would not be possible for the Court to return a finding even prima facie that a case of infringement or copyright was made out. The Court held that unless the essential features such as get-up, packing and other marks show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial whereas in a case of passing off, the alleged party may escape liability even if it is shown that the added matter is sufficient to distinguish his goods from the other.

The Court further held that the two companies supplying beer to two different segments of society, (i.e. Asia Pacific only to select hotels, airlines etc. while Superior Industries were suppliers at a retail level), there arose no possibility of an average person mistaking one brand to be the other. A visual comparison of the two was stated not to be indicatory of deceptive similarity except in the use of the word TIGER. Examining the layout on the can of Asia Pacific Breweries and the bottle marketed by Superior Industries, further substantiated the Court’s conclusion.

The Court stated that taking prima facie record of what was placed forth, Asia Pacific Breweries had failed in establishing a case in their favour. This reiterates that to establish trans-border reputation the evidence of foreign registration and sale in foreign countries need to proven beyond doubt. In this case it was found that Asia Pacific’s word TIGER had not assumed secondary significance to the extent that it denoted its products. However, the conclusion held is that though Asia Pacific has not been able to make out a prima facie case for interim injunction it may by way of evidence , during the trial, make out a good case of infringement and passing off.

© Lex Orbis 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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