The Delhi High Court, recently, refused to restrain Parle from using the tagline FOR THE BOLD as part of the label on its B FIZZ bottles and cans, in a suit for permanent injunction filed by PepsiCo Inc. The Court, however, restrained Parle from using the tagline FOR THE BOLD as predominant part of any advertising campaign of its B FIZZ beverage.
It was PepsiCo’s case that Parle’s advertisement campaign/use of a malt flavoured fruit juice beverage under the brand B FIZZ, comprising the tagline BE THE FIZZ! FOR THE BOLD!, as well as the tagline FOR THE BOLD! in a standalone manner on its social media platforms is infringement of PepsiCo’s FOR THE BOLD mark. PepsiCo had also claimed that the rival goods are allied and cognate in nature.
Parle, in its rebuttal to PepsiCo’s claims, submitted that PepsiCo has erred in comparing the rival marks, by extracting the latter FOR THE BOLD! component of the composite mark, in contravention of Section 17 of the Trade Marks Act, 1999. Parle also refuted PepsiCo’s claim that the rival goods are allied and cognate in nature, thereby negating any likelihood of confusion.
The Court, while deciding the case, observed that, while the rival goods are, in fact, allied and cognate in nature, the tagline FOR THE BOLD! appearing on Parle’s B FIZZ bottle/can is the least conspicuous element of the composite label, and thus, is likely to go unnoticed by an average consumer. This, in the Court’s opinion, negates any likelihood of confusion in the mind of the public. Resultantly, the Court refused to injunct Parle from using the tagline FOR THE BOLD! appearing on Parle’s B FIZZ bottle/can. The Court, however, observed that Parle has been using the tagline FOR THE BOLD! in a standalone manner as part of its advertising campaigns, which was found to be of infringing nature, and accordingly, the Court restrained Parle from using the tagline FOR THE BOLD! in a standalone manner in its advertising campaigns. The Court also directed Parle to not alter the label on its B FIZZ bottle/can without prior approval of the court.
PEPSICO INC. & ANR. v. PARLE AGRO PRIVATE LIMITED, CS(COMM) 268/2021, I.A. 7170/2021 & I.A. 9591/2021