Breezer vis a vis Freez: the alcoholic tussle
The Madras High Court on 12th November 2021 awarded Bacardi & Company Ltd., a company that makes the alcoholic beverage 'BREEZER', temporary relief, by prohibiting the defendants, manufacturer of non-alcoholic fruit-based beverages, from using the mark 'FREEZ Mix' on grounds that the latter mark was phonetically similar to the former.
Facts of the case
The plaintiff, Bacardi and Company Ltd, is a well-known alcoholic beverage producer. Under the brand "BREEZER," it creates and distributes rum-based drinks flavored with various fruit essences. The defendants, Bahety Overseas Private Limited, on the other hand, produce non-alcoholic fruit-based beverages under the trademark "FREEZ Mix." The defendants' goods, according to the complaint, infringe on the plaintiff's registered trademark. As a result, the plaintiff had filed a lawsuit seeking an injunction against the defendants' product.
The issue before the Court
Whether the plaintiff's "BREEZER" mark and the defendants' "FREEZ" mark are confusingly or deceptively similar, or likely to cause confusion among the general public?
The contention of the parties to the case
Senior Advocate Jayant Mehta, who represented the plaintiff, said that the defendants' product was purposefully manufactured to be "as near as feasible" to the plaintiff's product in order to trick a buyer into believing there was a link between the two. He claimed that the plaintiff's lime-flavoured "BREEZER" beverage and the defendants' lime-flavoured "FREEZ mix" beverage came in identical colour bottles. Because the defendants' beverage was colourless, he claimed that anyone looking at the bottles from the outside would see them as similar. This, too, he contended, was a blatant attempt by the defendants to imitate the plaintiff's trade dress.
The defendants' lawyer, Advocate Pranay Sarkar, argued that there was no visual similarity between the BREEZER brand and the defendants' logo. It was also claimed that the two words were not at all phonetically related. Mr Sarkar, while elaborating on the plaintiff's bottle form, argued that the plaintiff could not attempt to monopolise the shape because it was prevalent in the trade. He further said that people seldom link a product or its origin with its form and that the bottle's originality came from its conjunction with the label on the bottle. He contended that mere likeness or resemblance between the forms of defendants' and plaintiff's bottles was insufficient to establish infringement.
The test of phonetic similarity
When doing the phonetic similarity test, the markings should be examined from the perspective of someone with a hazy memory, rather than someone who is familiar with the marks. Minor differences in a syllable here and there may not make a difference if the marks are phonetically comparable overall. In this case, the phonetic similarity between "BREEZ" and "FREEZ" was determined to be undeniable. The inclusion of the second minor syllable "er" in the former mark did not make the marks phonetically distinct, especially when considering how "BREEZER" could be spoken in English, with emphasis on "BREEZ," and "er" being the minor syllable.
The Delhi High Court's observations
The defendants had purposefully adopted a trade dress that was sufficiently close to the plaintiff's that an untrained and naïve customer may reasonably assume a connection between the two marks.
It was observed that the defendants' non-alcoholic "FREEZ mix" would not appeal to a fan of the plaintiff's alcoholic "BREEZER." In this situation, the triple identity test of similarity of marks, the similarity of products, and availability through common sources were also observed to be satisfied.
The defendants were barred from using the infringed marks in any way, including the "FREEZ" mark and any other mark/label/sign/device/name or domain name that was identical to and/or deceptively or confusingly similar to the plaintiff's "BREEZER" or the plaintiff's registered shape mark.