CASE OF CARLSBERG AND TUBORG

Background:

The trademark “CARLSBERG” was initially registered in India on July 9, 1949, under application number 139539 in Class 32, and the plaintiff is the registered owner of such mark. Additionally, it is claimed that the plaintiff conducted the first sale in India using the aforementioned brand in 1904. Further registrations of the plaintiff’s mark “CARLSBERG” in device form have also been secured. According to the claim, the plaintiff began producing beer in India in 2007. According to the plaintiff, it began utilising a three-dimensional green opaque bottle with the word CARLSBERG engraved around the bottle on the lower side on September 22, 2007, in India, and it was registered on February 13, 2008, under application number 1653606 under Class 32. The plaintiff further asserts that their mark appears in various variants of its beer bearing the mark ‘CARLSBERG’.

With its two main brands, CARLSBERG and TUBORG, holding about 18% of the market share in India, it has experienced an amazing rise of roughly 19% over the last two years. Globally, the plaintiff earned USD 9.879 billion in sales in 2019. The plaintiff further claims that the first defendant was incorporated on July 22, 2022, and is in the business of producing and dispensing alcoholic and non-alcoholic beverages. The second defendant is an importer of beer using the disputed mark or label. The defendant number 3 has submitted an application for registration of the mark “TENSBERG” in the word mark and in the device mark, under application numbers 5426233 and 5426233 in Class 32. The fourth defendant, a business that was founded on April 1, 2022, manufactures and sells beer in India using the disputed mark and label. According to the complaint, Defendant No. 5 manufactures, brews, and exports beer under the trade names “TENSBERG.”. The plaintiff claims that the defendants’ use of a misleadingly similar mark and their marketing of their beer in a misleadingly similar bottle are intended to confuse consumers.

Court Orders:

1. The plaintiff’s and the defendants’ marks initially seem to be misleadingly similar. The two words sound similar phonetically. There can be no question that the plaintiff is the owner and a previous user of the trademark “CARLSBERG,” and with its registration, a superior claim to the defendants, who in their own case adopted the stated mark in India (though the complainant disputes this) only in 2018, and do hold registration for the aforementioned mark.

• At first glance, the defendants’ bottle as well as can, have a remarkable similarity to the plaintiff’s in terms of both shape and colour (green for the bottle and green/white for the can). The positioning of the markings and the appearance of the almost identical crown also suggest that the defendants intended to imitate the plaintiff’s mark as closely as possible. Beer cans and bottles are not purchased with meticulous inspection, but rather more casually. The two marks and their trade dress initially appear to be misleadingly similar and likely to mislead and confuse a gullible consumer who has a bad memory, according to the test.

• Similar reliance on the directive made by the State of Uttarakhand Department of Excise when approving the sale of beer in the State of Uttarakhand cannot serve as evidence of its actual use. Another point that needs to be made is that even if a claim of infringement is not pursued right away, that doesn’t mean that the defendant is using the infringing mark in an honest and concurrent manner. In this case, it would seem that the defendants lack both of these requirements.

• The plaintiff prevails over the defendants on the balance of convenience. The majority of the accused are recently incorporated businesses. At least as of right now, the defendants have not been able to demonstrate their presence in any other regions of the nation except from the registration in Uttarakhand. A gullible consumer’s interests are likely to be hurt by the use of deceptively identical marks and trade dress. Therefore the court is of the view that if an ad-interim injunction is not granted as requested, the plaintiff is likely to suffer severe irreparable harm.