Petitioner: Allied Blenders & Distillers

Respondent: Shree Nath Heritage Liquor Pvt.

Trademark: Officer’s Choice

Decision making Authority: Delhi High Court

Facts:

The Plaintiff had filed a suit for permanent injunction restraining the defendant from selling, distributing, advertising or dealing in alcoholic beverages especially Indian made Foreign Liquor (IMFL) or goods of any description bearing trade mark ‘Collector’s Choice’ or any other mark deceptively similar to plaintiff’s trade mark ‘Officer’s Choice’.

Issue:

Whether the marks of Allied Blenders & Distillers and Shree Nath Heritage Liquor, are similar and whether there is any likelihood of confusion between the two.

Sections/Acts Referred:

Section 2(h) of the Trademarks act 1999

Appellant Argument:

The plaintiff in their arguments stated that: the Indian whisky Officer’s Choice had become well-known on account of the fact that they had become the leading brand of whiskey across the world and had obtained the third position in the leading brands of spirits.

Officer’s Choice had become the largest whisky brand in world and also became the third largest spirit brand on planet behind HiteJinro’s Korean Soju Jinro, and Diageo’s Smirnoff vodka. The Plaintiff’s contention was that defendant had applied for registration for the trade mark Collector’s Choice. The mark Collector’s choice was devoid of any distinctive character. By using the word Choice in the trademark, the plaintiff stated that the defendant was taking undue advantage of the similarity that would occur due to the utilization of the name Choice in the trademark Collector’s choice. It would therefore cause the plaintiff to suffer a loss whenever the defendant sold his products under the name Collector’s choice, would lead the consumers into believing that the defendant’s good is that of the plaintiff’s officer’s Choice.

Respondent’s argument:

The defendant stated that marks similar to that of Officer’s Choice had been accepted in the past by learned examiners, which proved that usage of these words had become customary. The defendant in their arguments relied on Kerly‟s Law of Trade Marks and Trade Names stating that the fundamental basis for infringement of a trade mark is that the trade mark of the defendant should not be similar to that of the plaintiff’s and there should be no likelihood of confusion which would include the likelihood of association. The defendant also relied upon the case of Allied Blenders & Distilleries Pvt. Ltd. Vs. John Distillers Ltd., where it was held that there was no deceptive similarity or confusion between the marks Officer’s Choice and Original Choice in-spite of both having similar acronym of, OC.

The defendant also relied upon previous judgments on the basis of which, the defendant stated that the plaintiff’s mark and the defendant’s mark were visually and phonetically different from each other. Therefore there should not be any form of injunction against the defendant.

Judgment:

The court stated that the use by defendant of the trade mark was not for a long time and for large sale figures, while the loss sustained by the plaintiff by allowing the defendant to use the mark during the pendency of the suit would be irreparable. The court further stated that it failed to see any form of a loss that may have occurred to the defendant who was only a new entrant in the market and who had hardly used the mark and who was yet to build any form of goodwill or reputation. The court also stated that the defendant had not given any sale figures under its mark ‘Collector’s Choice’ and by making use of mark Collector’s Choice, was taking unfair advantage of the registered trade mark of the plaintiff. Therefore the defendant was restrained during pendency of suit from selling, distributing, advertising or otherwise dealing in goods bearing any mark/ label similar or deceptively similar to plaintiff’s mark/label ‘Officer’s Choice’ or from doing anything leading to passing off their goods as goods and business of the plaintiff.

Personal Opinion:

“Never take Judgments for granted”. It is evident that the defendant took the precedents for granted. It was clear that the defendants had expected the judgement to be given in their favor, on account of the fact that the Court had previously stated that Original Choice was dissimilar to Officer’s Choice. What the defendant failed to note was that all cases are decided on their own merits and while the factors may be the same, the facts may not.