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The majority of trademark litigations revolve around the concept of “deceptive similarity”. As the name implies, “deceptive similarity” can be defined as a considerable degree of resemblance between any two products or marks such that it is likely to deceive or confuse the general public of mediocre mindset into believing that the products or marks are associated or linked with each other. The Courts in India usually check upon certain conditions to draw out elements constituting deceptive similarity. These include; Principle of Phonetic and Visual Similarity, Rule of Entirety, that is, the mark is to be considered as a whole, degree of likelihood of confusion, and lastly, the goodwill attached to the mark being infringed. It is rather an uncommon happening that a domestic company takes a multinational billionaire company to the court alleging trademark infringement. Not very long ago, aggrieved Parle Agro Private Limited pushed Walmart into the Courtroom doors after it infringed upon the renowned “Appy Fizz” trademark.
Parent of the best-selling consumer brands, Parle Agro has founded 36-years ago in the year 1984. The Mumbai-headquartered company besides being known for its lip-smacking beverages namely Frooti, Appy Fizz, Frio, and Bailley brands, is also the owner of Parle-G, Melody, Mango Bite, Poppins, Kismi Toffee bar and biscuits like Monaco and Krackjack. Notably, the company owns various trademark registrations under its name, including “APPY FIZZ” bearing number 1668879,” APPY FIZZ (DEVICE OF APPLE)” bearing number 2106067, each under Class 32, amongst the others.
Of course, Parle won’t tolerate a replica of its nearest and dearest brand, no matter how enormous the rival infringer is. Parle Agro, in its petition, mentioned that Walmart India has launched an apple-flavored drink named “Fizzy Apple” bearing a “deceptively similar” packaging, thereby, infringing upon Parle’s Appy Fizz. Further alleging, Walmart is “manufacturing, marketing, selling and promoting” the infringing product “using identical font and colour scheme.”
Advocate Hiren Kamod, in an attempt to convince Justice BP Collabawalla of the Hon’ble Bombay High Court, argued that “The defendants are seeking to ride on the reputation and goodwill generated by the plaintiff in its ‘Appy Fizz’ product and the extensive promotion and advertisement of the same undertaken by the plaintiff and are seeking to make wrongful gains”. It was added, “It is obvious that the defendants are trying to sail as close to the wind as possible and have made all possible attempts to come as close as possible to Appy Fizz’.” On the other hand, counsel for the defendant, Advocate Abhishek Malhotra told the Court that ‘Fizzy’ is a fairly common word and the plaintiff, through this lawsuit is merely trying to claim the monopoly over the word.
On July 9, Justice BP Colabawalla sided with the plaintiff granting them an interim relief in the matter, restraining the defendants from manufacturing and marketing any product resembling the plaintiff’s trademark. The next date of hearing is only 12 days away. Stay tuned to find out what’s more in the Parle-Walmart dispute!