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HC dismisses Pepsi's appeal against Coke commercials

BS Bureaux

The Delhi High Court dismissed, with conditions, Pepsi Foods Ltd's application seeking interim injunctive reliefs against Coca-Cola India and damages claim to the tune of $106,000 in two cases relating to television commercials of the latter's beverage brands, ThumsUp and Sprite.

Pepsi had filed the application in March this year, alleging these commercials constituted trademark and copyright infringement, trademark dilution, commercial disparagement, trade libel and unfair competition.

Justice CK Mahajan read out the operative part of the judgment in the Thums Up-Sprite cases and pronounced Pepsi's petition seeking interim injunction against Coke dismissed, subject to the condition that Coke will undertake to pay damages to Pepsi if Pepsi ultimately succeeds in the suit.

A copy of the judgment will be available tomorrow. "Pepsi will file an appeal," said Pepsi counsel Pratibha Singh. "Moreover, as Coke has already stopped the advertisement campaign against which injunction was sought, the same is irrelevant," she said.

This is a unique case concerning comparative advertising in the country. Both companies have been regularly airing commercials taking on either the brands or the respective campaigns, primarily during the peak season.

A Coca-Cola statement said while Pepsi counsel Kapil Sibal has argued that the use of another's trademark in the course of comparative advertising is an infringement of trademarks under Indian law, Justice Mahajan rejected the contention and also Pepsi's claim of damages in this regard.

Pepsi issued two legal notices on Hindustan Coca-Cola Beverages-one on February 24, and the other on Mach 23. The first related to a ThumsUp commercial wherein a phrase "Yeh Dil Mange More" was mimed.

Pepsi has been using the same phrase in the commercials for its Pepsi-Cola brand and claimed the ThumsUp ad was infringing copyright. Coca-Cola had contended that "Yeh Dil Mange More" could also mean "this heart wants a peacock" instead of the popular understanding that "this heart wants more." The original ad by Pepsi was based on its global campaign "Ask for More."

Pepsi also challenged Coca-Cola for featuring a fictitious beverage (having close resemblance to the form of a Pepsi bottle) and naming it Pappi (sounding close to Pepsi) in one of the commercials of its clear-lime drink Sprite.

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