Geographical Indication – Infringement – Section 22 of the Geographical Indications of Goods (Registration And Protection) Act, 1999. Plaintiff has registered Geographical Indication CHAMPAGNE, the defendant is using such registered GI for marketing non alcoholic drinks. This is clear case of passing off and infringement of Plaintiffs GI

MIPR 2018 (1)  24   =    MANU/DE/2940/2017

 

IN THE HIGH COURT OF DELHI

Comite Interprofessionnel Du Vin De Champagne VS     Chinar Agro Fruit Products

CS (COMM.) 1194/2016

DECIDED ON: 07,09.2017

Judge

Sanjeev Sachdeva, J.

Counsel

For Appellant/Petitioner/Plaintiff: Taapsi John, Adv.

Acts/Rules/Regulations

Code of Civil Procedure, 1908

Rule 1

Rule 9                                                                                                                                       

Order VIII Rule 10                                                                                                               

Order XI Rule 6(3)                                                                                                               

Commercial Courts, Commercial Division and Commercial Appellate Division of

High Courts Act, 2015                                                                                                          

Geographical Indications of Goods (Registration and Protection) Act, 1999

Section 22

Section 22(l)(a)                                                                                                                      

Section 22(2)

Section 22(3)                                                                                                                          

Section 66                                                                                                                               

Section 67

Section 67(1)                                                                                                                          

Section 67(2)

HEAD NOTE

Geographical Indication – Infringement – Section 22 of the Geographical Indications of Goods (Registration And Protection) Act, 1999. Plaintiff has registered Geographical Indication CHAMPAGNE, the defendant is using such registered GI for marketing non alcoholic drinks. This is clear case of passing off and infringement of Plaintiffs GI

HELD in terms of Section 22 of GI Act, as Plaintiff has a Registered Geographical Indication for CHAMPAGNE, Plaintiff is entitled to seek inter alia relief of injunction as stipulated in Section 67 of GI Act. Defendant has neither appeared despite service nor filed any Written Statement to controvert any of averment in plaint which are supported by an affidavit and statement of truth. Acts of Defendant, are bound to cause damage to vine growers in Champagne region, wine making co-operatives, wine brokers and agents, grape processing companies, dealers and wine merchants of CHAMPAGNE wines and clearly amounts to passing off and infringement of Plaintiffs Registered Geographical Indication CHAMPAGNE. Use of name CHAMPAGNE by Defendant on its products, which do not originate from CHAMPAGNE region, amounts to infringement of Plaintiffs Registered Geographical Indication within meaning of Section 22(3) of GI Act. Protection afforded to an infringement of Geographical Indication is absolute in terms of Section 67 of GI Act. Absolute protection is afforded because any infringement would be presumed to cause damage to goodwill and reputation of producers in CHAMPAGNE region. If Defendant is allowed to continue use of word CHAMPAGNE in respect of non-alcoholic sparkling drinks, it is also likely to dilute distinctive character of well-known Geographical Indication CHAMPAGNE as a high quality sparkling wine originating exclusively from Champagne region of France and this would ultimately lead to Registered Geographical Indication CHAMPAGNE becoming generic in India. Suit is accordingly decreed in favour of Plaintiff and against Defendant and a decree for permanent injunction is passed in favour of Plaintiff and against Defendant.

 

 

JUDGMENT

Sanjeev Sachdeva, J.

CS (COMM) 1194/2016

  1. The Plaintiff has filed this Suit for infringement of Geographical Indication Under
    Section 22 of The Geographical Indications of Goods (Registration And Protection)
    Act, 1999 (hereinafter referred to as the GI Act) for restraining the Defendant from
    committing, inter-alia, acts of infringement of the Plaintiffs Registered Geographical
    Indication “CHAMPAGNE” by using the name CHAMPAGNE in respect of
    non-alcoholic sparkling drinks.
  2. Defendant has been served with the summons of the suit. None had appeared for
    the Defendant on 30th January, 2017. No Written Statement was filed within the
    statutory period. By order dated 30th January, 2017, the right to file Written Statement
    was closed and the Defendant was proceeded ex-parte. None appeared for the
    Defendant thereafter, on 4th September, 2017 and even none appears today.
  3. Learned Counsel for the Plaintiff submits that the Plaintiff is willing to give up the
    reliefs of rendition of accounts and recovery of damages.
  4. Learned Counsel for the Plaintiff relies on Order VIII Rule 10 of the Code of Civil
    Procedure, 1908 (hereinafter referred to as the Code of Civil Procedure) as amended
    by The Commercial Courts, Commercial Division and Commercial Appellate Division
    of High Courts Act, 2015 (hereinafter referred to as the Commercial Courts Act) to
    contend that as the Defendant has failed to file Written Statement, it has made itself
    liable for a Decree of permanent Injunction.
  5. The present Suit is a Commercial dispute as defined under the Commercial Court?
    The provision of the Code of Civil Procedure as amended by the Commercia.
    Courts Act are applicable.
  6. Order VIII Rule 10 as amended and applicable to Commercial disputes reads a?
    under:
  7. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. Provided further that no Court shall make an order to extend the time provided under Rule 1 of this order for filing of the written statement.
  8. In view of the fact that the Defendant has failed to appear and file the writter
    statement, the Defendant is liable to be proceeded with under Order VIII Rule 10 of
    Code of Civil Procedure.
  9. The Plaint is verified and supported by affidavit and statement of truth of the
    Plaintiff affirming the contents of the plaint. The Plaintiff has also filed an affidavit
    under Order XI Rule 6(3) of Code of Civil Procedure with regard to the electronic
  10. By an ex-parte ad-interim order dated 1st September, 2017, the Defendant, its officer?
    servants, agents and representatives were restrained from manufacturing, bottling
    selling, offering for sale, marketing, advertising, supplying, distributing, importing,
    exporting, stocking and dealing in directly or indirectly in any manner whatsoever
    in India or abroad any product under the name ‘CHAMPAGNE’ or by using am
    other expression or description which is indicative, thereby suggesting that tht
    product is originating from the Champagne region of France. The said order wa>
    made absolute by order dated 3rd January, 2017.

 

  1. In terms of order dated I*1 September, 2016, the Local Commissioner appointed tc
    inspect the premises of the Defendant has submitted a report indicating that
    infringing products and labels were found at the premises of the Defendant. The
    infringing goods have been handed over to the Defendant on Superdari.
  2. In view of the above, I am of the opinion that, this is a fit case, where instead of
    requiring the Plaintiff to lead ex parte evidence, judgment can be pronounced
    forthwith against the Defendant.
  3. The Plaintiff has pleaded that the Plaintiff is a public service body established bv
    an Act of the French Parliament. It claims to be a semi-governmental body with one
    of its principal objectives to protect CHAMPAGNE trade all over the world. Though
    it is not involved in the manufacture of any product, but its members produce
    The Plaintiffs powers and duties inter alia include the responsibility
    to manage and defend the rights in the Geographical Indication “CHAMPAGNE”
    both in France and overseas.
  4. It is contended that Mr. Vincent Perrin the Director General of the Plaintiff has
    been authorized to institute the present suit and also to sign and verify this plaint
    on behalf of the Plaintiff by the Board Resolution dated 4″1 December, 2014.
  5. The Geographical Indication in issue is the name “CHAMPAGNE” for a naturally
    sparkling wine produced only in the Champagne region in France.
  6. As per the Plaintiff, CHAMPAGNE is a naturally sparkling wine produced in
    the Champagne region of France by a process of double fermentation from grapes
    grown there. The region in which the CHAMPAGNE vineyards are found is almost
    100 miles east of Paris around Reims and Epernay. The uniqueness and distinct
    characteristics of CHAMPAGNE wines are influenced by interplay of the
    agro-climate conditions prevalent in the Champagne region of France such as chalky
    and flinty soil, influence of the ocean, rainfall, temperature, sunlight etc. and the
    human skills involved in the selection of grape varieties, the method of pruning,
    harvesting and production of the CHAMPAGNE wines.
  7. It is the Plaintiffs case that the production of CHAMPAGNE wines is governed
    by established rules covering all stages from the growing of the grape varieties right
    up to the bottling of the CHAMPAGNE wines. The wine so produced is and has, for
    a long time, been known to the trade and the public in India as CHAMPAGNE and,
    as such, has acquired enviable reputation.
  8. In India, CHAMPAGNE is a registered Geographical Indication under the
    provisions of the GI Act as per the following particulars:

Name of the             Class         Registration                Date of               Goods

Geographical                                    No.                     Registration

Indication

CHAMPAGNE            33                   140              29th September, 2008         Wine

  1. The registration is stated to be valid for a period of 10 (ten) years up to
    29th September, 2018.
  2. As per the Plaintiff, in terms of Sections 22(2) and 22(3) of the GI Act, the Registrar
    of Geographical Indications has issued a notification in Journal No. 44 (@ page 64,
    made available to the public on ll(h January, 2012). As per this notification,
    CHAMPAGNE has been afforded additional protection with effect from
    28th November, 2011. By virtue of such additional protection, the Plaintiff is entitled
    to invoke and enforce its statutory rights against any use of the Geographical
    Indication CHAMPAGNE absolutely, irrespective of whether such use causes or is
    likely to cause confusion.
  3. As per the Plaintiff, Plaintiff is registered proprietor of the Geographical
    Indication “CHAMPAGNE” in a number of countries, which includes all the 28
    member states of the European Union, 16 member states of the African Intellectual
    Property Organization (OAPI), Thailand, Panama, Indonesia, Dominican Republic
    and further, the appellation CHAMPAGNE is also protected by virtue of bilateral
    agreements in certain countries.
  4. In terms of Section 22 of GI act, use of the mark CHAMPAGNE on a product not
    originating from such geographical area, leading members of the trade and the
    public, into believing that such product is CHAMPAGNE, when such product is not
    CHAMPAGNE, would be a violation of the Plaintiffs statutory rights in the Registered
    Geographical Indication CHAMPAGNE.
  5. It is the case of the Plaintiff that in November, 2015, it became aware of a compar
    selling non-alcoholic sparkling drinks under the name CHAMPAGNE. As per :.-
    label on the product bottle, it was being manufactured, marketed and sold by :.-
  6. The Defendant is engaged in the manufacture and supply of bottled beverae-
    such as fruit beer, fruit juice, soft drinks and nonalcoholic sparkling drinks unj-.
    various brands, including the name CHAMPAGNE.
  7. The Defendant’s products under the name CHAMPAGNE are available in Deir
    Punjab and Jammu and Kashmir in various flavours.
  8. The impugned Label of the Defendant depicting the use of the \\v :
    CHAMPAGNE is as under:

Jf -•

i

  1. As per the Plaintiff, the Defendant has been using the Geographical Indicat CHAMPAGNE in respect of non-alcoholic sparkling drinks and by using the name CHAMPAGNE on beverages manufactured in India, the Defendant is misleading consumers into buying its products under a false belief that they originate from the Champagne region of France, when they do not. CHAMPAGNE being a sparklir; wine, when used in respect of a non-alcoholic sparkling beverage is, therefore, bound  to confuse and mislead the consuming public into believing that the product is indeed CHAMPAGNE.
  1. As per the Plaintiff, the aforesaid acts of misrepresentation on the part of the
    Defendant are not only dishonest, but are deliberate and calculated with an oblique
    motive to trade upon and take undue advantage of the goodwill and enviable
    reputation in the name CHAMPAGNE and pass off its goods as those originating
    from the Champagne region of France.
  2. Furthermore, the Defendant is selling its drinks in bottles that are virtually
    identical in shape, colour and configuration to those in which CHAMPAGNE wines
    are sold. It is contended that by adoption of essential features commonly used for
    wine bottles from Champagne region of France and use of the word CHAMPAGNE
    the Defendant has sought to create an impression that their product is CHAMPAGNE
    and the same lead to an inference that these drinks originate from the Champagne
    region of France and are either CHAMPAGNE or associated with the same, which is
    clearly in contravention of Section 22(l)(a) of the GI Act.
  3. Section 22 of the GI Act reads as under:
  4. Infringement or registered Geographical Indications.-(1) A Registered Geographical Indication is infringed by a person who, not being an authorised user thereof- (a) uses such Geographical Indication by any means in the designations or presentation of goods that indicates or suggests that such goods originate in a geographical area other than the true place of origin of such goods in a manner which misleads the persons as to the geographical origin of such goods; or

(3) Any person who is not an authorised user of a Geographical Indication registered under this Act in respect of the goods or any class or classes of goods notified under Sub-section (2), uses any other Geographical Indication to such goods or class or classes of goods not originating in the place indicated by such other Geographical Indication or uses such other Geographical Indication to such goods or class or classes of goods even indicating the true origin of such goods or uses such other Geographical Indication to such goods • or class or classes of goods in translation of the true place of origin or accompanied by expression such as “kind”, “style”, “imitation” or the like expression, shall infringe such Registered Geographical Indication.

  1. Section 67 of the GI Act reads as under:
  2. Relief in suit for infringement or for passing off.-(l) The relief which a Court may grant in any suit for infringement or for passing off referred to in Section 66 includes injunction (subject to such terms, if any, as the Court thinks fit) and at the option of the Plaintiff either damages or account of profits, together with or without any order for the delivery-up of the infringing labels and indications for destruction or erasure.

(2) The order of injunction under Sub-section (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:-

(a) for discovery of documents;

(ii) restraining the Defendant by itself and its officers, servants, agents and representatives from indulging in all acts of unfair competition, including passing off or engaging in any other act that would dilute and debase the collective goodwill and reputation enjoyed by the name CHAMPAGNE as a unique wine originating from the Champagne region of France;

  1. Further, the Defendants are directed to deliver up all the goods, including bottles,
    cartons, labels, wrappers, boxes, packaging etc. that were seized by the Local
    Commissioner and handed over to the Defendants on Superdari, to the authorized
    representative of the Plaintiff for the purpose of destruction.
  2. In view of the fact that learned Counsel for the Plaintiff has given up the relief of
    damages, the prayer for award of damages is dismissed as withdrawn.
  3. The suit is accordingly decreed in the above terms, with Costs of the Suit to be
  4. Decree sheet be drawn up.

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