JUDGMENT
R.C. Jain, J.
1. M/s. Heineken Brouwerijen B.V., Netherland, the plaintiff have filed this application under Order XXXIX Rules 1 & 2 read with Section 151 CPC praying for interim injunction against the defendant, Som Distilleries & Breweries Ltd. for restraining them, its promoters, directors, shareholders, licensees, franchisees, servants, partners, agents, representatives and distributors etc. severally and jointly from using in any manner whatsoever the infringing label or any other label identical with or deceptively similar to the plaintiff’s registered green label colour, getup, layout etc. upon or in relation to its beer products and from passing off its beer products as the beer products of the plaintiff.
2. In brief, the relevant facts are that the plaintiff has filed a suit for perpetual injunction and damages to restrain the defendant from infringing the plaintiff’s registered green label in relation to its beer products or any label identical with or deceptively similar to the plaintiff’s registered green label and from passing off its goods and business as the goods and business of the plaintiff. It is averred in the plaint that the plaintiff is a very old Brewery of Netherland in existence ever since 1863 and has been in the business of brewing and selling beer under the brand name “Heineken” beer in over 170 countries of the world and have established a brand identity for their product all over the world. The plaintiff’s beer product can be distinguished and isolated from other brands at the first sight. The core elements of the brand identity of the plaintiff’s beer being the green label containing the green colour and the Heineken black colour bar which is now synonymous with the plaintiff’s beer. The said green label of the plaintiff’s product was registered in many countries of the world in 1924 and was used internationally and was first registered in Ireland in 1959 and in India in the year 1968 under registration No. 249868 dated June 14, 1968 under Class 32. The above trademark of the plaintiff is valid and subsisting on the Indian Register of Trade Marks and renewed up to the year 2003. The plaintiff’s claim is that they have sold more than 17 million hectoliters of Heineken beer bearing the green label and its close variations worldwide in the year 1995-96 and had been spending a substantial portion of its income on global advertising and promotion of its beer products besides sponsoring various events in support of its brand identity like Rugby World Cup in South Africa and Davis Cup Tennis, US Open Tennis and in 1996, the Heineken Trophy in Netherland and the Heineken Open Tournament were sponsored.
3. For sale of its beer under the said brand in India, the plaintiff has entered into a letter agreement with an entity named LASCO (Mr. K. Bala Ram) of 13, Hanuman Sharan, Bomanjee Patel Road, Mumbai and had appointed the said entity for Heineken beer in India for the duty free market. Since 1996, the plaintiff’s beer is available in all star hotels in New Delhi, Mumbai, Chennai, Calcutta and Goa and the beer bearing the green label enjoys considerable goodwill and reputation in India.
4. It is further alleged that in and around 1995, the plaintiff learnt about the existence of defendant’s business of producing and selling beer in India using a label virtually identical with the plaintiff’s green label and the plaintiff was distressed to note that the defendant had copied and imitated its colour green, had placed a black bar in its label just like the Heineken black bar in plaintiff’s label and had copied the layout and getup of the plaintiff’s green label. The green label of the plaintiff and the defendant have also been depicted in the plaint and the documents. Aggrieved by the defendant’s conduct of using a virtually infringing label on its beer, the plaintiff served with the defendant a legal notice dated 23rd June, 1995 calling upon the defendant to immediately cease and desist from making any further use infringing the label but the defendant in its reply dated 14th July, 1995 refuted each and every averment. Further correspondence ensued between the parties but the dispute remain unsolved.
5. Defendant has contested the suit and filed its written statement not specifically denying the plaintiff being the registered owner of the trademark “Heineken” beer and they being engaged in the business of manufacturing the beer and marketing it through more than 170 countries of the world and of their beer having green label but it is denied that there is a brand identity of “Heineken” beer all over the world or that the plaintiff’s product can be distinguished and isolated at the first sight. It is denied that the core elements of the plaintiff’s brand are the colour green and the Heineken black colour bar or that any alleged green label is synonymous with the plaintiff’s as regards beer. It is also denied that the label of the defendant is identical with or deceptively similar to the green label of the plaintiff. It is denied that plaintiff’s beer under the “`Heineken” trademark is available in the open market in India. It is stated that many beer brands throughout the world use a similar label in terms of colour and middle bar and many of them are using black bars. It is also stated that the plaintiff has deliberately filed an old label of the defendant which has since been discontinued by the defendant as the defendant has changed the colour of the lettering of its brand name of “Legend” to golden in view of the better market reception to such a colour as advised by its marketing in advertising concerns. It is denied that the defendant has ever infringed the trademark of the plaintiff. The exchange of correspondence between the parties is not denied but it is stated that the plaintiff’s suit has been filed belatedly after the said correspondence. Some of the distinguishing features in the two labels have been fully detailed in para No. 27 of the written statement which may be reproduced below for the facility of reference:-
(i) From the overall look of the lable it can be seen found that the Heineken label is of elliptical shape and Legend is absolutely of oval shape.
(ii) Regarding size it is apparent that the Legend label is much larger and this is also clear from the fact that the Horizontal Axis to be 89 mm 1 mm in the Legend label as against 72 mm of Heineken Beer, and the Vertical Axis is 107 mm 1 mm as against 93 mm.
(iii) The Heineken label has got a green colour solid band all around the label whereas the Legend Label has got a green band in different pieces on to the top and bottom of the label making enormous difference between these labels. The shade of green in the two labels are distinctly different.
(iv) The Heineken label has got a black band extended up to the green elliptical band with a convex cut with edged outlet. The Legend label has got a black straight bar extended up to the outer border which divides the complete label into two part differentiating the labels in totality. The Legend name is printed in gold in the bar whereas the Heineken name printed in White. (v) On the green band the brand name and the name of manufacturing country is printed whereas the Legend beer labels carries only the segment of beer printed on the green band which has divided into two part by the black straight bar. (vi) The logo printed into the top part of the innermost cell of the label is totally different from each other and that too printed in totally different inks. (vii) All the legends printed in Legend label is printed in English and in Heineken labels it is printed in a language other than English. (viii) The outer border in case of Heineken is solid white as against Legend's printed outer border.
(ix) Regarding lettering style, it has been observed that the type phase used to print the brand name in Legend label is in Old English Test, whereas in Heineken the type phase used in Jenson Bold. The type phase of the letters printed in the green against Helvetica Bold in Heineken Label. In the legend label type phase of all the printed matters in the innermost cell is either of Helvetica Medium or Helvetica 6 Pt. 80% condense. Whereas, type phase of all the printed matters in the innermost cell of Heineken label is Helvetica Normal which contributes more to differentiate the basic artwork design of the label.”
6. On the strength of the above said distinguishing features, it is pleaded that the differences of the colour, design, layout, getup and format inescapably conclude that both these labels are the outcome of entirely independent artistic ideas and there is no resemblance in the two labels. It is also denied that the defendant has deliberately or intentionally or in violation of any statutory or proprietory right of the plaintiff, adopted its label with respect to beer. It is pleaded that if the plaintiff has any goodwill or reputation in respect of the said name “Heineken”, it does not exist in India. It is also stated that the defendant is not only engaged in the business of beer but also various other liquors including Whisky etc. It is denied that the defendant has adopted virtually identical or infringing label with dishonest intention and on the other hand it is stated that the allegations are false and defamatory and the defendant reserves its right to take criminal and/or civil action for defamation against the plaintiff. It is denied that the plaintiff is entitled to either the permanent or temporary injunction as prayed for.
7. Parties have filed documents and material in support of their respective pleas. I have perused the same and have heard Sh. Navin Chawla, Advocate representing the plaintiff/applicant and Mr. A.S. Chandhiok, Sr. Advocate representing the defendant and have given my thoughtful consideration to their submissions. To entitle for a temporary injunction, the party seeking the injunction has to establish a prima facie case and also to show that the balance of convenience lies in his favor and he is likely to suffer irreparable loss and injury which cannot be compensated in terms of money if the interim injunction is not granted. As noticed in the earlier part of this order, the plaintiff is producing and marketing its product under its own brand name of “Heineken” and the beer being termed as “Heineken” Lager Beer while the defendant is producing and marketing its beer under the brand name “Legend” Premium Lager Beer. Admittedly, the defendant is no longer using the label as reproduced in para No. 15 of the plaint and has substantially changed its label as filed Along with the pleadings in which “Legend” is printed in bold besides there being many other dis-similarities in the shape and size of the label and in various inscriptions and marks appearing on the two labels. On a comparison of the two labels, this Court is of the considered view that by no stretch, the two labels can be said to be identical or deceptively similar or a copy of the label of the plaintiff. The trade name of the two parties are printed in bold and all other inscriptions have been printed in a legible manner and in different languages. These inscriptions are entirely differently worded from each other. This Court, therefore, even at this stage has no hesitation in holding that the two labels not identical but are quite distinguishable and there is no visual similarity except the outer oval ring of the two labels being green in colour.
8. Yet another important factor which would disentitle the plaintiff an interim injunction is that as per the plaintiff’s own showing, its beer under the brand name of “Heineken” beer is not available in India off the shelf and it is being marketed in India only in canes and that too for the purpose of duty free shops and for consumption in star hotels and big clubs of some metropolitan cities of India. It would necessarily show that there is no chance of an ordinary purchaser being deceived merely by the look of the label or the colour of the label so far as the product of the parties is concerned. The defendant is marketing its beer in the form of bottles only and not in canes which again would show that there is no likelihood of any deception being practiced on the general public. It is also worth noting that generally the clientele of star hotels and clubs and duty free shops are literate persons of higher status and they are not likely to be deceived merely by colour of the label because such clientele would ask for the beer by its brand name rather than by asking by the label colour only. The product of the plaintiff prominently display that it is brewed in Holland while the label of the product of the defendant shows that it is an indigenous product having been brewed and bottled by an Indian distillery in Madhya Pradesh, India. It is, therefore, not possible to hold the contention of the learned counsel for the plaintiff that the defendant had copied the label of the plaintiff and is trying to pass on its products as the product of the plaintiff with mala fide and with a view to make undue profits at the cost of plaintiff.
9. It is, therefore, held that the plaintiff has failed to make out a prima facie case in its favor entitling him for an interim injunction. The balance of convenience also does not lie in favor of the plaintiff. There is no question of irreparable loss or injury being caused to the plaintiff more particularly because as per its own showing of the plaintiff, its product is meant to cater the needs of only star hotels and some duty free shops and clubs etc. Balance of convenience lies in favor of the defendant rather than the plaintiff because it is he who is likely to suffer loss and damages in case he is injuncted and restrained from marketing its product under the impugned label.
10. In the result, the plaintiff’s application is hereby dismissed being without any merit. Needless to mention that observations made in this order are tentative based on the prima facie view of the matter and will not affect the merit of the case at its subsequent stages of the trial.