Case: Express Bottlers Services Pvt. Ltd., Bombay Vs Pepsico Incorporated, New York, U.S.A. Trademark Tribunal
| Counsel | For Appellant: Mr. V.V. Tulzapurkar with Mr. Vivek Grover and Mr. Sampat Kumar, Advocates |
| Judges | Om Parkash, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 2(2)(b), 11, 18 |
| Judgement Date | September 27, 1991 |
| Court | Trademark Tribunal |
Judgment:
Om Parakash, DRTM.
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These opposition proceedings relate to oppositions No. DEL-4925, DEL-4790 and DEL-4927 lodged to oppose the registration of the applicants, namely (i) application No. 417908 filed on 18-2-1984 under the trade mark word per se PEPSI in respect of soft drink beverages and syrups and concentration for preparation thereof included in class 32, (ii) application No. 417911 filed on 18.2.1984 under trade mark PEPSI-COLA with geometrical miscellaneous device, in respect of soft drink beverages and syrups and concentrates for preparation thereof included in class 32, and (iii) application No. 417910 filed on 18.2.1984 under the trade mark PEPSI with geometrical miscellaneous device, in respect or soft drink beverages and syrups and concentrates for preparation thereof included in class 32, filed by M/s. Pepsico Inc., a U.S. Corporation organised and existing under the laws of the State of Delaware, 700 Andarson Hill Road, Purchase, New York, U.S.A. (hereinafter referred to as the applicants). Certain objections were raised by the Trade Marks Registry and after compliance thereof, the abovesaid marks were allowed for being advertised in the Trade Marks Journals. In due course, the abovesaid marks were advertised in Journals No. 912 and 927 respectively.
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The aforementioned oppositions are heard together on the request of the Ld. counsel for applicants, for the sake of justice, equity and fair play, as the rival parties are the same, the trade marks involved in these matters are the same and the issues arising in these three cases are also substantially the same. Therefore, the ld. registrar agreed to issue a common judgement in these matters on the request of the ld. counsel for applicants.
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On 22 February, 1988, M/s. Express Bottlers Services Pvt. Ltd., 201 Manhsa, 11 Union Park, Pali Hill, Bombay-52 (hereinafter referred to as the opponents) lodged the notices of opposition to oppose the registration of the abovesaid three marks advertised. Here the opposition No. DEL-4925 is taken as the main case (Grounds of notice of opposition and counter-statement are not reproduced being discussed in the order).
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On 23 September, 1988 the applicants lodged a counter-statement denying all the material averments whatever contained in the notice of opposition.
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On 2nd June, 1989, the opponents filed evidence under Rule 53(1) of the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as the Rules) of user and reputation of their trade marks which consists of an affidavit dated 24th May, 1989 in the name of one Mr. P.S. Madhavan, secretary of opponents company. This affidavit has been accompanied by photostat copy of suit No. 2903 of 1986 of the High Court of Bombay marked Annexure 'A', a copy of rectification proceedings bearing No. 1661/1985 in the High Court of Calcutta marked Annexure 'B', copy of caution notice served on the applicants marked Annexure 'C', photostat copies of list of Pepsi-Cola marked Annexure 'D', photostat copies of supply orders marked P 1-10, advertisement cutting marked Annexure 'E', a copy of a matter of 1985 filed in the High Court of Calcutta marked Annexure 'F', photostat copy of trade marks Journal No. 912 marked Annexure 'C', and advertisement cuttings marked Annexure 'H'.
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On 6 October, 1989, the applicants filed evidence in support of application, under Rule 54 which consists of an affidavit dated 5 September, 1989 in the name of one Mr. Joseph J. Joyce, Vice-President and Assistant General counsel of the applicants corporation. This affidavit has been accompanied be Annexure 'A' which consists of a list of Live Pepsi-Cola mark which are marked P. 1-96, Annexure 'B' which consists of statement of word-wide sales figures of soft drinks sold under the trade mark PEPSI and PEPSI-COLA during the year 1977-1987 marked P. 2, Annexure 'C' which also consists of sales figures for the period 1977-1987 marked P. 3, Annexure 'D' which consists of advertisement cuttings marked P.4/1-42, Annexure 'E' which consists of a photostat copy of affidavit dated 7th May, 1982 in the name of one Mr. B.K. Talwar marked P.5, Annexure 'F' which consists of invoices regarding supply of Pepsi-Cola beverages to India marked P.6/1-6, and Annexure 'G' which consists of copy of letters and advertisement cuttings marked P. 7/1-133.
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It may specifically be mentioned here that the opponents have neither filed h-7 desiring to be heard before the ld. Registrar, nor TM-56 for seeking extension/adjournment in this matter.
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Upon completion of the abovesaid evidence, the matter was set down for hearing before me. Eventually, the matter came up for hearing on 6.8.1991 at 11.30 a.m. when Shri V.V. Tulzapurkar, Advocate alongwith Shri Vivek Grover, Advocate and Shri R. Sampat Kumar appeared on behalf of the applicants and non appeared on behalf of the opponents. Although I have been deprived of the...
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