RADICO KHAITAN LIMITED (Radico) is involved in the manufacturing and selling of Indian Made Foreign Liquor (IMFL) in India. One of its products is branded as ‘MAGIC MOMENTS’. Radico adopted the word mark ‘MAGIC MOMENTS’ in the year 1997 and launched Gin and Vodka under this trademark in 2005 and 2006. Radico has been using the trademark since then. It has launched several variants which contain the suffix moments such as Remix Moments (2008), Verve Moments (2012), and Electra Moments (2015). SARAO DISTILLERY (OPC) PVT. LTD (Sarao) and GREENTECH BLENDERS AND DISTILLERS (Greentech) started using the brand ‘EVENING MOMENT’ for whisky. Radico was aggrieved by this.
Radico approached the Delhi High Court seeking an ex-parte injunction restraining Sarao from using the mark ‘EVENING MOMENT’.
Initially, the Court granted an ex-parte ad-interim injunction in favour of Radico and restrained Sarao and Greentech (defendants) from using the trademark’ EVENING MOMENT’ in respect of any product other than whisky.
However, Sarao and Greentech did not entered appearance even after being been served summons via e-mails.
Radico submitted that although Sarao and Greentech were initially not injuncted for whisky as they had submitted that they had been using the mark EVENING MOMENT for five years and were also that Greentech was the registered proprietor of the trademark EVENING MOMENT for alcoholic beverages, both defendants had not entered appearance in Court even after 7 hearings.
Radico further submitted that the word ‘MOMENTS’ is the essential and dominant feature of its mark ‘MAGIC MOMENTS’ and therefore the mark deserves to be protected even for whisky.
Radico produced screenshots of a search on the Trademark Registry’s website which showed that the most of the marks registered with the word ‘MOMENTS’ belong to Radico.
The Court after considering Radico’s averments held that the marks ‘MAGIC MOMENTS’ and ‘EVENING MOMENT’ are deceptively similar since the essential feature ‘MOMENT’ was being used by Sarao. The use of the word ‘MOMENT’ in Sarao’s mark could lead consumers to connect the product with Radico. It could be perceived that Sarao’s product is another product in Radico’s stable. Moreover, the use of the word ‘EVENING’ is not sufficient to distinguish the two products due to the very nature of the product which is usually consumed in the evening. The focus would be on the word ‘MOMENT’ which is the dominant part of the mark.
Hence, the Court extended the injunction to all alcoholic beverages and restrained Sarao and Greentech to manufacture and market any alcoholic beverages under the mark “EVENING MOMENT”.
A lesson from this story, even if you have a registered mark not appearing in the Court and defending can result in disastrous consequences.