New Delhi: The Delhi High Court has dismissed Red Bull’s injunction application against Pepsico from using the tagline “Stimulates Mind, Energizes Body” for its energy drink “Sting”.
Red Bull had knocked the doors of the court alleging that the defendant Pepsi’s tagline is deceptively similar to its registered tagline “Vitalizes body and mind” which is using since 1987 and in 73 different countries around the world.
The present suit was filed in August 2018 and in September 24, 2018, the parties were referred for mediation. However, the mediation did not bear fruits, as per the order dated April 6.
On the other hand, Pepsi said they sell the drink under the brand name “Sting” in respect of which they have obtained registration. However, the tagline is being used by the defendants only in a descriptive manner and therefore, no registration has been sought in respect thereof, as a trademark, it argued.
In the 26-page order, passed by Justice Amit Bansal, it was observed that the disputed tagline is in a descriptive manner and not as a trademark. The tagline used by the defendants, “STIMULATES MIND. ENERGIZES BODY” is a phrase or an expression comprising of four words of the English language that aims to describe the features and quality of its drink. In comparison to the brand name of the defendants’ product, “Sting”, which is displayed prominently on the cans, the impugned tagline only appears in a small font. Furthermore, the defendants have not sought any registration in respect of the aforesaid tagline.
Further, the order said Pepsi launched their products in India in 2017 using the impugned mark on their product. Although the present suit was filed in 2018, the fact of the matter is that no injunction has been granted in favour of the plaintiff till date, even though the delay may not entirely be attributable to the plaintiff, the order said.
It further noted that even though some of this delay may be attributable to the judicial process or the outbreak of the Covid-19 pandemic, the undisputed position is that the defendants have been selling their product with the impugned mark for almost five years.
The court also said it has arrived at a prima facie view that the taglines used by both the plaintiff and the defendants are descriptive in nature as they describe the qualities/characteristic of their respective products.