Recently, the Delhi High Court granted an ad-interim injunction in favor of Carlsberg Breweries A/S (“Plaintiff”) restraining Tensberg Breweries Industries Pvt. Ltd. & Ors. (“Defendants”) from using the mark TENSBERG as well as its trade dress.
The Plaintiff submitted that it is the registered proprietor of the mark CARLSBERG since the year 1949, and claimed to have made its first sale under the mark CARLSBERG in the year 1904. The Plaintiff also submitted that it is using a three-dimensional green opaque bottle with its mark CARLSBERG embossed on the bottom since the year 2007, and has a shape mark registration as of 2008. The Plaintiff asserted that the Defendants have adopted a deceptively similar mark and is marketing its beer in a deceptively similar bottle so as to cause consumer confusion.
The Defendants, on the other hand, averred that the Plaintiff is guilty of misrepresentation and concealment of facts. However, as per the Defendants, the Plaintiff has been aware of its use since 2019 owing to an order issued by the Excise Office, Dehradun, Uttarakhand, which permitted sale of the Plaintiff’s and the Defendants’ beer in Uttarakhand. The Defendants also claimed to have extensive sales under the mark TENSBERG, and to have advertised its goods on YouTube, Facebook, etc. to the knowledge of the Plaintiff.
The Court observed that, prima facie, both the rival marks are deceptively similar, and that the Plaintiff clearly has better rights over the Defendants. The Court also observed that the Defendants, prima facie, appear to be riding on the reputation of the Plaintiff by adopting a nearly identical get-up of the bottle. The Court further noted that the order issued by the Department of Excise cannot be proof of actual use and knowledge. Accordingly, the Court granted an ad-interim injunction in favour of the Plaintiff till the next date of hearing.
Carlsberg Breweries A/S v. Tensberg Breweries Industries Pvt. Ltd.and Ors., CS (COMM) 646/2022, Order dt. September 16, 2022, Delhi High Court