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Wipro claims Heinz’s product is phonetically and visually similar to its trademark. T V Ramanujun, senior counsel for Heinz India, said the allegations of Wipro are baseless.
According to Wipro, Heinz India’s Glucose-based chewable tablet is phonetically and visually similar to its trademark.
When the appeal came up in the division bench of Chief Justice Sanjay Kishan Kaul and judge P Pushpa Sathyanarayana, former Union finance minister P Chidambaram, appearing as Wipro’s senior counsel, argued the judge had erred in comparing the two products side-by-side to conclude that the products have several different features. An ordinary buyer would get confused between the two products, if both are not available side-by-side for comparison, Chidambaram said.
T V Ramanujun, senior counsel for Heinz India, argued the labels are in the jars that are sold to the retailer and the end consumer would be served with tablet packets from the jar. He said the allegations of Wipro are baseless. Advocate Arun C Mohan also appeared for Heinz India. The court adjourned the matter for hearing.
Judge R Subbiah had through an order on June 10, 2015 dismissed Wipro’s application seeking an interim injunction restricting Heinz from using the mark Volt or similar-sounding marks. Wipro had also sought to restrict other companies from using the tagline ‘Instant Energy. Anytime. Anywhere’ or ‘Energy of Glucon-D Anywhere Anytime’ or similar-sounding lines and manufacturing or marketing any kind of products using the colour scheme similar to its product.
Wipro alleged that although Heinz's product is marketed along with its brand name Glucon-D, the adoption of the nearly-identical trademark Volt showed the mala-fide nature of Heinz India. Wipro added it had filed applications seeking registration of the trademark Bolts. It said while the company markets the product under the tagline ‘Instant Energy... Anytime Anywhere', Heinz has also adopted the tag line 'Energy of Glucon-D Anywhere Anytime' and the colour schemes were identical.
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It alleged Heinz India not only attempted to copy its artwork, it also chose to price the product at Rs 10 in a perforated circle form in a similar manner as done by Wipro.Countering the allegations of Wipro, Heinz India said the trademark Volt is not visually, phonetically or structurally identical to the expression Bolts. It added Glucon-D is a well known trademark and a common household name and has established a mark for itself. Both the products of Wipro and Heinz are known under the trademark Glucovita and Glucon-D, it argued.
“The bona fide intent of the first defendant (Heinz India) is evident in the act of the defendants to file for registration of the mark GLUCON-D VOLT instead of just VOLT,” it argued.
Judge Subbiah, while dismissing various grounds raised by Wipro, said that prima-facie the label mark of Heinz India was well distinguished from that of Wipro and any alleged violation by Heinz India could be established only during the course of the trial. The issue as to whether there is any similarity between the two labels has to be gone into only during the course of trial.
"...I am of the opinion, the plaintiff has not made out a prima facie case to grant an order of interim injunction in their favour at this stage and the balance of convenience is also not in their favour and the entire issue involved in this case has to be decided only at the time of trial. Therefore, I am not inclined to grant an order of interim injunction in favour of the plaintiff and all the applications are liable to be dismissed," he said. It is against this order the company approached the division bench.