Pepsi Co., Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr. 2003 (27) PTC 305 (Del)

Pepsi Co., Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr.

2003 (27) PTC 305 (Del)

 

Facts:

The appellants in this case were Pepsi Co Inc and they were suing the respondents, Hindustan Coca Cola Ltd (henceforth Coca Cola) over a series of advertisements carried out by the respondents. In some of these advertisements, a drink with the word PAPPI on its label with a mark similar to the Pepsi’s globe mark was used in comparison to the respondent’s own drink.

 The advertisement featured a child initially claiming Pepsi as his favorite drink, although the audio was bleeped out. In a blind taste test between Pepsi and another drink called "PAPPI," the child selected the respondent’s drink. He explained that PAPPI was too sweet and embarrassed that he had previously named it as his favorite, suggesting it was only suitable for children.

The adds also contained the lead actor saying “Wrong choice baby” when the child initially states that Pepsi (bleeped out) is his favourite drink and uttering the phrase “Yeh Dil Maange No More.”

The appellants alleged, that in another advertisement the respondents had copied a roller coaster commercial that they had launched earlier and sought to receive an injunction on the alleged copy. They also claimed that the use of the globe design and the phrase “Yeh Dil Maange No More” amounted to trademark infringement while the nature of the respondent’s adverts amounted to the disparaging of the appellant’s products.

 

Issues:

1) Whether prima facie the respondents have disparaged the products of the appellants;

2) Wwhether the globe devise and the phrase "Yeh Dil Maange More" is copy right-able

and if so whether this copy right has been infringed by the respondent;

3) Whether the essence of the roller coaster has been copied by the respondents and if so the

effect of the same.

 

Rule:

Comparative advertising is permitted as long as it diesn’t discredit or denigrate the trade mark or trade name of the competitor. Mere puffing of goods is not actionable. Tradesman can say his goods are best or better. But by comparison the tradesman cannot slander nor defame the goods of the competitor nor can call it bad or inferior. To decide the question of disparagement following factors have to be kept in mind

 (1) Intent of commercial

 (2) Manner of the commercial

(3) Story line of the commercial and the message sought to be conveyed by the commercial.

 

Holding:

With regards to the first issue, the Court found that the respondent’s advertisements did, in fact, disparage the appellant’s products. In deciding this, the Court looked into the following factors:

• Intent of commercial
• (ii) Manner of the commercial
• (iii) Story line of the commercial and the message sought to be conveyed by the commercial.

 

They reasoned though the word Pepsi had been censored in the commercial, a viewer could make out the word from the movement of the actor’s mouth. Further, the use of the word PAPPI and the symbol similar to Pepsi’s globe, clearly pointed to Pepsi as they were the only cola brand in the market that aligned with these descriptions.

The Court reasoned that the adverts amounted to disparage as they clearly sent out the message that the appellant’s drink was an inferior one as it was too sweet and something only children would drink as this affected the appellant’s market of adolescent and adult consumers. Further, the actor’s apparent embarrassment on finding out that the sweet drink is what he had initially claimed to like also indicates that being fond of the appellant’s drink is something to be ashamed of. It is because of this negative portrayal of the competitor that the adverts were not passed off as mere puffing and disparagement was held.

With regards to the second issue, the Court ruled that the nature of both the phrase and the globe had to be deduced from the manner in which they are used. By this, both are trademarks of the appellant and infringement, if any, has to be measured accordingly. Here the Court ruled that there was no infringement as the respondents had not used either of these marks in the course of their trade and, in that, were not in contravention with section 29(1) of the trade Marks Act.

With regards to the final issue, the Court applied the test laid down in R.G. Anand v. Deluxe Film and found that apart from minor embellishments and changes, the essence of both the adverts were the same. Hence, the respondents had violated the copyright of the appellants.

Therefore, the court grated the injunction with regards to the publication and screening of this advertisement.

Video Summary - https://www.youtube.com/watch?v=wedJHx8UNfQ&list=PL-1DBVyVi7EaCojbQa5_XKBVJqA1y1REh&index=5