PepsiCo has done it again — stopping a deceptively similar “Aquafine” from riding on its well-known “Aquafina” bottled-water brand. The case turns on a simple point: “Aqua” alone is generic, but what you add to it decides distinctiveness.
The win
The Delhi High Court restrained Aqua Mineral (India) from using “Aquafine,” finding it infringed PepsiCo’s rights in “Aquafina.” PepsiCo relied on the mark’s well-known status, its use since 1999, and its registrations — securing a permanent injunction plus ₹5 lakh in damages.
Not the first time
This isn’t PepsiCo’s first Aquafina battle. The same court confirmed an injunction against another “Aquafine” in 2011 — that one belonging to M/s Pure Water Beverages, restrained for deceptive similarity to Aquafina. Interestingly, a search of the Trade Marks Office records shows that “Aquafine” mark still ‘registered’, with renewal applications apparently made by PepsiCo (suggesting an acquisition, though little assignment evidence appears beyond a line in the renewal).
On Aquafina itself, PepsiCo holds at least 8 “Aquafina” marks in class 32 (one label mark withdrawn), and has even applied for the Aquafina bottle-with-label as a 3-D mark (currently objected). Several third-party “Aquafine” marks appear refused/abandoned, a few pending — even an abandoned ‘Aquafina’ by a third party from 2001.
Why “Aqua” doesn’t save the copycat
“Aqua” (water) is generic — so the prefix or suffix is the focal point of distinctiveness. On its face, “Aquafine” is not distinct from “Aquafina,” especially applying the cardinal trademark principle of judging from the viewpoint of a “man of average intelligence and imperfect recollection.” The near-identical endings, on a well-known mark, doomed the copycats.
The takeaway
Given Aquafina’s well-known status, expect more such battles — and more losses for near-identical “Aquafine”-style marks. The generic root “Aqua” offers no shelter when the overall mark deceives.
The takeaways
- A generic root doesn’t legitimise a copycat — the prefix/suffix carries distinctiveness.
- Judge from the average, imperfect-recollection consumer — near-identical endings deceive.
- Well-known status is a strong sword — Aquafina’s reputation undid successive “Aquafine” marks.
- Injunction plus damages — ₹5 lakh here, following a 2011 win against another “Aquafine.”
Frequently asked questions
Why couldn’t ‘Aquafine’ coexist with ‘Aquafina’? Because although “Aqua” is generic, the overall marks are near-identical, and to an average consumer with imperfect recollection “Aquafine” is deceptively similar to the well-known “Aquafina.”
Does a generic word in a mark prevent infringement? No — the generic part (like “Aqua”) carries little weight; distinctiveness and the likelihood of confusion turn on the whole mark and its distinctive elements.
What did PepsiCo recover? A permanent injunction against “Aquafine” plus ₹5 lakh in damages, on the strength of Aquafina’s well-known status and registrations.
Can a bottle shape be trademarked? PepsiCo applied for the Aquafina bottle-with-label as a 3-D mark, though that application was objected — shape marks require distinctiveness.
Legislation referred to
- The Trade Marks Act, 1999