PepsiCo request to enjoin use of 7TH UP mark granted

India

The Delhi High Court has issued an interim injunction restraining Sunrise Beverages from using marks similar to PepsiCo Inc's SEVEN UP and 7UP marks.

Sunrise Beverages sold drinks under the marks SEVENTH UP and 7TH UP at a much lower price than PepsiCo's 7Up-branded products. PepsiCo filed an action with the Delhi High Court requesting an interim injunction restraining Sunrise from all use of the marks. In response, Sunrise contended that:

  • the Delhi High Court did not have jurisdiction as the products were sold in Rajasthan;

  • the case should be dismissed on the grounds of laches and acquiescence;

  • its SEVENTH UP and 7TH UP marks were not similar to PepsiCo's SEVEN UP and 7UP marks;

  • the price difference between Sunrise's and PepsiCo's products was so vast that different segments of the public would buy the products and thus any risk of confusion as to the origin of the goods would be avoided.

The Delhi High Court dismissed Sunrise's arguments. It found the following:

  • Sunrise's marks were phonetically similar to PepsiCo's marks;

  • the trademarks were visually similar as even though the typefaces and features of the rival marks were slightly different, they used the same letters and numeral; and

  • the marks covered the same type of goods.

Because of this close similarity between the marks, the court considered that the products' price difference was irrelevant in deciding the questions of confusion and deception. Accordingly, it granted the interim injunction.

Rajiv Suri, Rouse & Co International, Dubai

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