Delhi High Court: A suit was filed by Red Bull AG (plaintiff) seeking a direction for the disposal of unfilled cans considering the injunction granted against the defendant for the adoption of an identical silver and blue colour combination for identical energy drinks. Prathiba M Singh, J., directed to dispose of the unfilled cans till 31-01-2024, and any goods that are not disposed of by 31-01-2024, shall be destroyed by the defendants.
The plaintiff is a Swiss company, claiming to be the owner/proprietor of the internationally well-known mark ‘RED BULL’ adopted in the year 1982, used for energy drinks in many variants. The case of the Plaintiff is that the said products are distributed and sold in more than 173 countries around the world. In India, the ‘RED BULL’ energy drink was launched in 2000 through a national distribution and marketing partner. However, sometime in 2007, Plaintiff incorporated an Indian subsidiary namely Red Bull India Pvt. Ltd. and started operating through it. The marks of the Plaintiff include ‘RED BULL’, ‘BULL’, the double BULL device, single BULL device as also the blue and silver colour combination in a trapezial design on the plaintiff’s can packaging.
The case of the plaintiff is that the blue and silver colour combination in the distinctive layout and arrangement is exclusively associated with the Plaintiff. The plaintiff also claims that the blue and silver colour combination has been used in much promotional advertising material. The said colour combination is registered in India as also many countries, as a trademark. In the present case, the Plaintiff is aggrieved by the Defendants’ adoption of an identical silver and blue colour combination for identical energy drinks. The Defendants are manufacturing and marketing the said energy drink under the mark ‘SEVEN HOURS’.
The Plaintiff’s case was that the defendants are also promoting their products on social media including on Instagram, YouTube, etc. Some of the videos that surfaced on YouTube would show that one of the reviewers, in fact, claims that the Defendants’ product is similarly branded to ‘RED BULL’. Since the products are being sold in Delhi and are being promoted in Delhi, it was averred that the Defendants are purposefully availing the jurisdiction.
A Local Commissioner was appointed to affect the seizure of the infringing products as per the Court orders. The defendants then moved an application seeking the release and dispose of the existing cans which have been seized by the Local Commissioner. As per the above order, the filled cans were permitted to be disposed of by the defendants by 31-12-2023 and Rs.3 lakhs was to be deposited with the Registrar General.
On the submission by the defendants that unfilled cans are quite expensive, and the defendants have been selling these products since 2021, the Court noted that many unfilled cans would be required to be destroyed if permission to dispose of the unfilled cans is not given. Since the defendants have been using the impugned cans for the last two years, it was felt right that permission be given to fill the unfilled cans and sell the same, during the usual course of business, subject to payment of monetary damages to the plaintiff.
The Court further noted that the seized products consisting of 1,66,175 empty cans are permitted to be filled and disposed of during business, subject to payment of a further sum of Rs.10 lakhs. “No further products shall be sold by the defendants under the infringing marks and labels except the filled and unfilled cans which were seized by the Local Commissioner. The unfilled cans which have been seized, shall be released in favour of the Defendants, which were given to them on superdari basis, in the presence of a representative of the plaintiff. The plaintiff’s representative may accordingly visit the Defendants’ premises on 01-11-2023 at 11:00 a.m.”
Thus, the Court held that all seized products shall be unsealed and given to the defendants and the defendants shall pay a sum of Rs.13 lakhs to the plaintiff on or before 31-01-2024.
[Red Bull AG v Rohidas Popat Kapadnis, 2023 SCC OnLine Del 6595, decided on 16-10-2023]
Advocates who appeared in this case :
Mr. Anirudh Bakhru, Ms. Neeharika Chauhan, Ms. Vijay Laxmi Rathi, Ms. Apurva Bhutani, Advocates for plaintiff
Mr Umesh Mishra, Mr Satish Kumar Advocates for defendants
