Prabhjot Kaur 12/10/20 #copyright #patent #trademarks #infringement #trending #blogging #intellectualproperty #IPR #IPRinfo #IPlaw #IPRrights #Trademarkclickcom #IP #lawfirms #lawyers #legalmarketing #entrepreneur #PepsiCo #MountainDew #beverages #Magfast #Aquafina #IndiaIP

Oomph! The giant got knocked off the legal arena. Some may say even the best have their worst days but how would one describe losing a 15-year-old battle. It’s in the news everywhere. Something beyond expectation happened when the beverage goliath PepsiCo lost exclusivity over its renowned MOUNTAIN DEW mark with respect to packaged drinking water. On the other side of the battlefield was one not-so-famous Hyderabad based beverage manufacturer, Magfast Beverages.

The beginning of this 15-year-old rivalry was of course the courtesy of PepsiCo. Like every big name, PepsiCo too was protective of its MOUNTAIN DEW mark and therefore, filed a trademark infringement suit against Magfast, over the usage of the MOUNTAIN DEW mark on their packaged drinking water bottle. Soon thereafter, an appeal was filed by Syed Ghaziuddin, the Chairman of Magfast before the Supreme Court of India, requesting transfer of the case to the City Civil Court of Hyderabad owing to jurisdictional limitations. Just after the transfer, Magfast slapped PepsiCo with a counter infringement suit. 

In these 15 years of ongoing legal battle, the Court observed numerous evidence, arguments, and witnesses and documents presented by both the concerned. Not letting down their armors, several claims and contentions were raised. On one hand, PepsiCo argued that its well-known MOUNTAIN DEW mark prevails as early as 1940 and was first adopted in the US. It was only between 1985-1990 MOUNTAIN DEW acquired trademark statuses in India. India’s Trademark Registry website shows MOUNTAIN DEW’s earliest applications show one bearing number 436257 under Class 32 for goods including “Soft Drink Beverages and Syrups and Concentrates for the Preparation thereof”. The same stands for valid and subsisting since 1990.

To further the infringement claims, PepsiCo asserted that it sells packaged drinking water under the mark AQUAFINA which is registered under Class 32 as well. Therefore, marketing and selling of packaged water bottles by Magfast, bearing an identical name and a similar trade dress including the label, for a similar product, can most likely cause confusion amongst the public regarding the origination of the product.

On the other hand, Magfast affirmed that it adopted the MOUNTAIN DEW mark in 2000 and has been using it over-packaged drinking water ever since. Further arguments mentioned the fact that it was only after 2003 that PepsiCo started advertising and marketing MOUNTAIN DEW in India. Moreover, the brand, MOUNTAIN DEW was second-handedly purchased by PepsiCo from Hartman Beverages in 1964 with a specific disclaimer pertaining to the exclusive right over the conflicting mark. With respect to trade dress violation claims, Magfast pleaded that the structure, designs, labels, and other features of both the bottles are evidently dissimilar and hence, there exists no possibility that an ordinary purchaser might get confused.

A few days ago, the Hyderabad City Civil Court dismissed the case by concluding that both the products were substantially different from each other. The judge observed, all the marketing evidence exhibited by PepsiCo was dated prior to 2004, unquestionably 4 years after the official launch of Magfast’s packaged drinking water in Hyderabad. The final decision? PepsiCo lost sole rights of the MOUNTAIN DEW mark. Irrespective of everything, Magfast couldn’t prove trademark infringement.

Soon after the decision, one PepsiCo spokesperson hinted towards an appeal by stating, “PepsiCo is the registered owner of the trademark Mountain Dew in India since 1985 and continues to be so. PepsiCo’s trademark rights in Mountain Dew have not been affected in any manner due to the orders passed by City Civil Court Hyderabad. PepsiCo has been advised that it has strong grounds for challenging the orders passed by City Civil Court Hyderabad in appeal, both on facts as well as on law, and we are in process of filing the Appeal before the Hon’ble High Court.”


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