BREEZER Vs. FREEZmix

In a recent case of Bacardi and Company Limited Vs. Bahety Overseas Private Limited & Ors., the Hon’ble High Court of Delhi decides whether the trade mark and trade dress of the defendant are similar to those of the plaintiff.

The plaintiff manufactures and sells rum-based beverages mixed with various fruit essences under the name "BREEZER". The defendants manufacture non-alcoholic fruit-based beverages under the mark "FREEZmix".

The plaintiff claimed the torts of infringement and passing off against the defendants and seeks for injunction against the defendants' products.

The plaintiff’s word mark "BREEZER" and the shape mark of the bottle have been registered under class 32 and 33, which are in use by the plaintiff since 27th February, 2003.

The plaintiff points out that the defendants are using the word mark "FREEZMIX" in a manner which infringes the plaintiff’s registered word mark "BREEZER" as well as the registered shape mark of the bottle in which the plaintiff manufactures and sells its product. The plaintiff contended that the defendant’s mark is phonetically and visually similar to the plaintiff’s registered trade mark. Further, the manner in which the plaintiff wrote "" and the defendants wrote "" on its product is also similar.

The plaintiff submitted that the word "mix" in the label is placed below the word FREEZ in insignificantly small font size, which is not practically visible to an average viewer. This indicates a conscious attempt to capitalize on the plaintiff’s goodwill by the defendant.

Relying on the case of "Amritdhara" and "Lakshmandhara", "Aristoc" and "Rysta" and "Gluvita" and "Glucovita", wherein the courts have held the rival marks to be phonetically similar, the court observed that the marks "FREEZ" and "BREEZER" are phonetically similar.

Further, on the aspect of trade dress, the court observed that the defendants have attempted at adopting a trade dress which is similar to the trade dress of the plaintiff. The shape of the defendant’s bottle is identical to that of the plaintiff and both the bottles have an identical ‘champagne style base’. Additionally, the neck design of the bottles is also identical and the defendant has used colours on its label, cap and the bottle identical to those used on the plaintiff’s bottles.

Considering the above facts, the Court restrained the defendants from using the impugned marks "FREEZ", "FREEZmix" or any mark/label/sign/device/name or domain name, which is identical with and/or deceptively or confusingly similar to the plaintiff’s marks, or the plaintiff’s registered shape mark in any manner whatsoever.

Case study: Bacardi And Company Limited v. Bhahety Overseas Private Limited &Ors. CS(COMM) 464/2021 & I.A. 12323/2021