Pepsi’s Tagline “Stimulates Mind, Energizes Body” Is Prima Facie Not Similar To Redbull’s “Vitalizes Body And Mind”: Delhi High Court

Case: Red Bull AG v PepsiCo India Holdings Pvt Ltd & Anr
Coram: HON’BLE MR. JUSTICE AMIT BANSAL
Case No.: ITA CS(COMM) 1092/2018, I.A. No.11452/2018 (O-XXVI R-9), I.A. No.8931/2019 (u/s 124 of TM Act)
Court Observation: “…since the products of the plaintiff and defendants are of the same kind, viz. energy
drinks, descriptive or laudatory taglines in respect of these products have necessarily to communicate the same idea. Therefore, it cannot be said that the adoption of the impugned mark by the defendants was not bona fide.”
“when rights are claimed over a word mark as a trade mark and which word mark is in fact a mere tweak of a descriptive word indicative of the kind, quality, intended purpose or other characteristics of the goods, it is not open to urge that although the respondent is using the descriptive word mark in fact only as a part of sentence as a description (and even assuming for the sake of argument only the descriptive word mark in itself) along with another independent trade mark, yet the use of descriptive words are to be injuncted against.”
“… In fact, the aforesaid words “STIMULATE” and “ENERGIZES” have been used by the defendant in its impugned mark. The fact that the plaintiff has used the aforesaid tagline in a descriptive manner is also evidenced by the fact that the tagline appears as a sentence on the can of the plaintiff’s product herein the first word “VITALIZES” has the alphabet “V” in capital letters and the sentence ends with a full stop.”
“…the Court has to take a prima facie view with regard to the validity of the registration of the mark and in my prima facie view, the tagline used by the plaintiff is of descriptive/laudatory character, which ought not to have been granted registration in view of Section 9(1)(b) of the Trade Marks Act.”