This past week, the Delhi High Court refused to grant an interim injunction for usage of tagline “STIMULATES MIND. ENERGIZES BODY.” by the Pepsico. The Plaintiff, Red Bull, filed a suit for trademark infringement against the defendants claiming the use of their tagline to be deceptively similar to Plaintiff’s registered trademark “VITALIZES BODY AND MIND” which has been in use since 1987. Plaintiff stated that this tagline has become a source identifier of their products and due to their long and extensive usage it has acquired distinctiveness, in relation to their products.
It was the case of Defendants that they filed a rectification against the said tagline of Plaintiff on the grounds that it is descriptive and laudatory. Further, Defendants claimed that the tagline is being used by them only in a descriptive manner and thus there has been no trademark registration sought till now. The Defendants further contended the usage and layout of cans is used by both parties is totally different and thus the case of passing off cannot be made.
The court after hearing the arguments of both sides held that there is no prima facie case of passing off and trademark infringement. The appearance of both products is different and there appears to no similarity between them. Further, the court held that the taglines of both the parties are descriptive and laudatory in nature and thus there is no registration granted in favor of Plaintiff’s. Further the court opined that the impugned tagline of Defendant only appears in a small font on the products and there lies no registration for the same. Whether the tagline of Plaintiff has acquired distinctiveness or secondary meaning in respect of Plaintiff’s products has to be established at the stage of trial.
The court held that the Balance of convenience lies in the favor of the defendants for not granting interim injunction as their products are being sold in the market with impugned tagline for almost five years and hence the injunction application was dismissed.