In a recent judgment, the Delhi High Court restrained Hermes Distillery Pvt. Ltd. (“Defendant”) from using its PEACE MAKER labels, holding it to be a deceptively similar imitation of Allied Blenders and Distillers Pvt. Ltd.’s (“Plaintiff”) OFFICER’S CHOICE labels for their liquor bottles.
The Plaintiff claimed it has substantive statutory and common law rights in its distinctive OFFICER’S CHOICE labels and trade marks, which the Plaintiff claimed to use for marketing and selling its OFFICER’S CHOICE brand of whiskey. The Plaintiff contended that the Defendant’s PEACE MAKER labels, used by the Defendant for marketing and selling its brand of whiskey, were an imitation of the Plaintiff’s labels. It was argued that the Defendant had imitated features, such as the red, white, and gold colour combination, the golden border on the labels, the cursive font of the ‘PEACE MAKER’ mark printed on the label, the golden-yellow accents of the mark, the positioning of the mark in the top half of the label, and so on.
The Defendant, on the other hand, averred that the Plaintiff had failed to make out a case for passing off since there was no consistency in the Plaintiff’s use of the OFFICER’S CHOICE labels as the Plaintiff had itself been changing the labels of its whiskey after every few years. It was argued that due to such inconsistency, the Plaintiff had failed to show that the label had acquired any goodwill on its own, without leaning on to the goodwill vested in the Plaintiff’s OFFICER’S CHOICE mark. The Defendant also argued that the labels which were pressed into service were only a part of the trade dress, and the remaining features, such as the bottle shape, colour, label, etc. forming part of the Defendant’s trade dress were all different from that of the Plaintiff.
The court rejected the Defendant’s arguments and held that the test of comparing two products/labels was not that of identity but that of similarity, which is to be tested from the plank of a consumer of average intelligence and imperfect recollection. The court further observed that the Defendant had indulged in “smart copying”, where the broad overall features from the Plaintiff’s label had been copied, while intentionally leaving out certain specific elements. The court held that the Defendant’s attempts at highlighting the minute differences between the two labels, in fact, showed that labels were broadly and obviously similar, and that the differences, being so little, deserved to be nudged into oblivion. Accordingly, the court injuncted the Defendant from using the PEACE MAKER labels in respect of its alcoholic beverages till the disposal of the suit.
Judgement Docs can be accessed here, https://shorturl.at/mnxW5
Allied Blenders & Distillers Pvt. Ltd. v. Hermes Distillery Private Limited, Judgment dated January 15, 2024 (2024:DHC:288)