Pepsico Move Stays Campa Orange Dew Registration

The registration of the trademark 'Orange Dew' by Campa Beverages has been stayed by the Delhi High Court on a petition filed by PepsiCo Inc.

A division bench comprising justice Mahinder Narain and justice S K Mahajan said, "Till the next date of hearing, implementation of the order of the registrar dated April 4, 1997, is stayed". The matter has been posted for hearing on February 3. PepsiCo had earlier, challenged the Campa application for registration of the trade mark 'Orange Dew' before the Deputy Registrar of Trade Mark, New Delhi and a single judge bench of Delhi High Court, but it was turned down by both. PepsiCo is the registered proprietor of trade mark ''Mountain Dew'' in India since 1985 for soft drink beverages and syrups and concentrates.

Counsels for PepsiCo, P N Sewak and Prathiba M Singh contended that 'Mountain Dew' was the sixth largest selling brand in the US and PepsiCo had plans to introduce it in India. The petitioner submitted that the adoption of trade mark 'Orange Dew' by Campa, which is also engaged in a similar business, could not be viewed as innocent or coincidental, but was a deliberate and calculated attempt to benefit from the goodwill and reputation associated with 'Mountain Dew'.

They said registration of 'Orange Dew' was likely to cause confusion and deception among the trade and public as 'Dew' formed an essential feature of PepsiCo's soft drinks and beverages.

Earlier, the single judge of the Delhi High Court had dismissed PepsiCo's appeal against the Deputy Registrar of Trade Marks' order on the ground that the two trade marks were not visually, phonetically and structurally similar.

The petitioner submitted that the single judge compared the two marks in a vacuum, complete ignoring other considerations such as PepsiCo's long standing proprietary rights and same class of goods. PepsiCo counsel further contended that the comparison must be done in the face of the consumer's imperfect recollection of the appellant's mark.

The case assumes importance as Mountain Dew has been one of the most successful brand for PepsiCo in the US.

It has provided a scope for growth in what is a mostly stagnant soft-drink industry, the petitioner said. Mountain Dew represents about 10 per cent of PepsiCo's world-wide carbonated beverages volume and a powerful 17 per cent of its domestic sales, they said. It is also, by far, the biggest contributor to PepsiCo's gains in recent years, accounting for 66 per cent of its domestic sales growth in soda beverages, the petitioners added.