COLLEGE MOOT COURT

(2022-2023)

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Civil Appeal No. 3275 of 2009

The Coca-Cola Company ---------- Petitioner

V/S

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Counsel on behalf of Appellant
Bisleri International Pvt. Ltd. & Ors. ----------Respondent

MEMORIAL ON BEHALF OF THE Appellant

Sr. Index Page no.

No.

4
1. List of Abbreviations

5
2. Index of Authorities

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Counsel on behalf of Appellant
 6
3. Statement of Jurisdiction

7
4. Statement of Facts

8
5. Statement of Issues

9
6. Argument

14
7. Prayer

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Counsel on behalf of Appellant
 List Of Abbreviation

Abbreviations Actual Term

Art. Article

Sec. Section

SC Supreme Court

HC High Court

WP. Writ Petition

Hon’ble Honorable

Vs Versus

U/S Under Section

No. Number

U/A Under Section

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Counsel on behalf of Appellant
 Index Of Authority

BOOKS
 The Constitution of India
 Trade Marks Act, 1999
 Special Relief Act, 1963
 Code of Civil Procedure, 1908

WEBSITES
 Supreme Today
 AIR Online
 Indian Kanoon

CASES
 J.N. Nichols (Vimto) Ltd. V. Rose and Thistle and Anr. (1994)
 Pfizer Products Inc. V. Rajesh Chopra (2007)

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Counsel on behalf of Appellant
 Statement Of Jurisdiction

The petitioners have approached the Hon’ble Delhi High Court to hear and
adjudicate over the instant matter under Section 20 (c) of the Code of Civil
Procedure and Section 131 of the Trademark Act, 1999. The provision under
which the petitioners have approached the Hon’ble court is read herein as
follows:

Section 20 (c) of CPC: - Subject to the limitations aforesaid, every suit shall be
instituted in a Court within the local limits of whose jurisdiction and the cause of
action, wholly or in part, arises.

Section 131 of the Trademark Act: - Extension of time

(1) If the Registrar is satisfied, on application made to him in the prescribed

manner and accompanied by the prescribed fee, that there is sufficient cause for
extending the time for doing any act (not being a time expressly provided in this
Act), whether the time so specified has expired or not, he may, subject to such
conditions as he may think fit to impose, extend the time and inform the parties
accordingly.

(2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the
parties before disposing of an application for extension of time, and no appeal shall
lie from any order of the Registrar under this section.

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Counsel on behalf of Appellant
 Statement of Facts
1. The Coca Cola Company (Plaintiff), was the largest brand in soft drinks. It
had a presence in over 200 countries.
2. It primarily functioned through appointing bottlers and granting them license
to use its trademarks for sale of beverages. It also appointed third parties to
make beverage bases for sale to the bottlers.
3. The Bisleri International Pvt Ltd (Defendant); owned the trademark to
various soft drinks such as Thums Up, Limca, Gold Spot, Maaza.
4. On September 18th, 1993, the defendant sold all the trademarks, formulation
rights and other intellectual property rights of to the plaintiffs.
5. On 12th November 1993, the defendants assigned the trademark and license
agreement with their affiliate Bisleri Sales, who made the beverage base for
MAAZA.
6. The defendants continued to retain the use of trademark in respect for
countries other than India, where the mark was already registered.
7. In March 2008, the defendant came to be aware of the plaintiff filing for
registration of the impugned mark in Turkey.
8. The Defendant immediately sent a legal notice claiming a breach of their
agreement. The Defendant argued that the assignment deed only allowed the
plaintiff’s to use the mark in India.
9. The plaintiff thus approached the High Court with a suit for temporary
injunction under Order 39, Rule 1 and 2 of the Civil Procedure Code (CPC).
10. Additionally, the plaintiff also contended that according to the agreement,
the right of using the formulation of MAAZA was of the plaintiff alone, but
in violation of the agreement, the defendant had disclosed the information to
third party named M/S Varma International.

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Counsel on behalf of Appellant
 Statement of Issues

 Whether there is any infringement of the trademark or passing-off?

 Whether the exports of the trademark ‘Maaza’ products can be

considered an infringement as claimed by the defendant.

 Whether plaintiff is entitled to get a permanent injunction against

defendant?

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Counsel on behalf of Appellant
 Argument

Issue 1:

There is an infringement of the Trademark by the defendant as per section 29 of

the Trade Mark Act, 1999.

Section 29 (2): -

Infringement of registered trademarks—

A registered trademark is infringed by a person who, not being a registered

proprietor or a person using by way of permitted use, uses in the course of trade, a
mark which because of—

(a) its identity with the registered trademark and the similarity of the goods or
services covered by such registered trade mark; or

(b) its similarity to the registered trademark and the identity or similarity of the
goods or services covered by such registered trademark; or

(c) its identity with the registered trademark and the identity of the goods or
services covered by a such registered trademark,

is likely to cause confusion on the part of the public, or which is likely to have an
association with the registered trademark.

As per the fact sheet on 12th November 1993, my client and Bisleri International
Pvt Ltd entered into an agreement in which Bisleri sold the globally authorised
trademark, formulation rights, intellectual property rights, and goodwill. In

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Counsel on behalf of Appellant
October 1994 the licensing agreement for MAAZA took place between my client
and Bisleri International Pvt ltd in which it was clearly mentioned all the terms and
conditions and it was also conveyed to Bisleri International Pvt Ltd that the
agreement is irrevocable.

Any restrictions by the defendant on the use of the trademark ‘Maaza’ and its
manufacturing formula after a licensing agreement had already been made between
my client and Bisleri International Pvt ltd, and then repudiating it whenever and
wherever required as my client has the sole and exclusive right to use the
trademark within and outside India so if Bisleri International Pvt ltd tries to register
anywhere else in he globe than it will be considered as a part of the infringement of
my client’s right.

In the case of J.N. Nichols (Vimto) Ltd. V. Rose and Thistle and Anr. (1994), it
was said that ‘USE’ of a mark as provided in section 2(2)(c)(i) of the Trade Mark
Act, does not imply actual physical sale and mere advertisement, without having
existed goods, can be said to be the use of a mark, defining the intention of the
person to use the mark. It depends on two factors, whether there was a use, and
whether it was bonafide. Therefore, since, the use of marks was malafide to the
effect, it was said to be an infringement of the trademark.

Also, the defendant violated my client's rights as they disclosed the information
about the formation of MAZZA to a third party named M/S Varma International.
In the contract, it was clearly stated that Bisleri International Pvt Ltd (Defendant)
has sold the Trademark and even the formation of MAZZA and also goodwill to
my client i.e. Coco Cola Ltd. Because of this move of the defendant, my client has
suffered a huge loss. As the defendant sold the formation secret, and it was clearly
mentioned in the contract that Bisleri International Pvt ltd cannot disclose the
information of the formation or any other secret to any other party.
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Counsel on behalf of Appellant
Here the defendant has committed a malicious act and taken undue advantage of
my client’s established goodwill and reputation.
The Trademark is a special image or word used to address a business or its items
and once they are registered it cannot be used by some other business or
association in any manner.
As my learned counsel very well knows that India not only follows the codified
law but also the common law principles and even conventions too. So as per rights
provided under TRIPs, the owners of registered trademarks have an exclusive right
to prevent third parties from using identical or similar goods signs that are similar
to those in respect of which the trademark is registered where such use would
cause confusion.

And even the defendant has signed a confidentiality and non-compete agreement
with my client which means that Bisleri International Pvt Ltd cannot use, offer,
assign and convey the formula, trademark, etc to another person.

Issue 2

As stated earlier in the first argument that the use of a trademark is all over the
globe so it is upon my client and as my learned counsel accepted that the contract
was valid and his client i.e Bisleri International Pvt. ltd has given up on its right
and also in the agreement it was clearly mentioned that what so ever my client do
with this trademark, Bisleri International Pvt. Ltd has no interest and shares in that
and from nowhere your client can interfere in the day-to-day business of my client.

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Counsel on behalf of Appellant
Also, it is well-settled law that exporting goods from a country is to be considered
a sale within the country from where the goods are exported, and the same amounts
to infringement of trademark as per section 29 of the Trade Marks Act, 1999 and
as we know my client is the registered owner of the trademark MAAZA. My
client forever owning the trademark can decide on what to do with it however they
want. My client is not bound to inform the defendant neither they have to obtain
permission to make use of the Trademark.

In the case of Pfizer Products Inc. V. Rajesh Chopra (2007 (35) PTC 59 Del), it
was held that if the trademark holder uses its trademark globally also for export
purposes and no one can interfere in their business and the court also clarified that
trademark is a territorial right with global implications and every owner of a
trademark should their caution awareness of their IP.

Article 19(1) (g) of the Indian Constitution, guarantees freedom of trade,

occupation, and business for a lawful purpose, so even the defendant cannot stop
my client from exercising its rights.

Trademark is a worldwide practice and protects its owners around continents and
also every organization’s trademark can be licensed anywhere until there is an
assignment that completely confers rights, whether inside or outside the world.

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Counsel on behalf of Appellant
Issue 3

The suit is not barred under Section 41 (h) and (1) of the Specific Relief Act, 1963
as the agreement between my client and Bisleri International Pvt. ltd was a
determinable contract and my client is entitled to an injunction for enforcement of
its exclusive rights.

In view of the negative covenant under section 42 of the Specific Relief Act, the
defendant is not entitled to use the mark MAAZA globally and also cannot sell the
formulation right to any 3rd Party.

Bisleri International Pvt. Ltd has infringed my client’s right of trademark, so this
matter falls under section 135 (1) of trademark 1999,

The infringement was done by the defendant fall under the purview of section 135
(1) of the trademark act 1999, for granting permanent injunction for any further
use.

Also, there was an immense loss due to the infringement of the trademark

As Bisleri International Pvt. ltd gave the formation secret to 3rd party i.e the
Varma… due to which my client has suffered a huge loss which is monetary as
well as a loss of goodwill so Bisleri International Pvt. Ltd is entitled to pay
Damages to my client.

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Counsel on behalf of Appellant
 Prayer

Wherefore in the Light of these issues raised, arguments advanced and authorities
cited it is most humbly prayed before this Hon’ble Court that it may be pleased to
grant

1. Relief may kindly be granted against the infringement done by Bisleri Pvt
ltd.
2. Permanent injunction kindly be granted against the infringement done by the
bisleri ltd
3. That monetary losses done by Bisleri ltd towards my client may kindly be
recovered.

AND MAY PASS ANY SUCH ORDER OR OTHER ORDER THAT IT DEEMS
FIT IN THE INTEREST OF JUSTICE, EQUITY, AND GOOD CONSCIENCE.

AND FOR THIS, APPELLANT AS IN DUTY BOUND SHALL HUMBLY

PRAY AND OBILIGED.

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Counsel on behalf of Appellant