Wipro files appeal against Single Judge order in trademark dispute

Wipro Enterprises Ltd and Heinz India Pvt Ltd are locking horns over trademark of their glucose based chewable tablets. Wipro, which owns Glucovita Bolt brand of chewy tablet, has filed an appeal in the Madras High Court against a Single Judge order dismissing its plea for an interim injunction against Heinz's usage of the mark Glucon-D Volt.

Wipro, which claims that its product Glucovita Bolt has been present in the market from 2012 and between the years 2012-2015, it was a market leader having a turnover of Rs 22.3 crore with an advertisement expenditure of Rs 11.2 crore, alleged that the Glucose based chewable tablet, manufactured and marketed by Heinz India and Candico (I) Ltd is phonetically and visually similar to the trademark.

When the appeal came up in the division bench of Chief Justice Sanjay Kishan Kaul and Justice P Pushpa Sathyanarayana, former Union Finance Minister P Chidambaram, the senior counsel appeared for Wipro, argued that the learned Judge has erred in comparing both the products side by side to get into a conclusion that the products has several different features. An unwary purchaser of average intelligence may get confused between both the products, if both are not available side by side for comparison, he said.

T V Ramaniyam, senior counsel appeared for Heinz India argued that the labels are in the jars which are sold to the retailer and the end consumer would be served with packets of the chewing tablet from the jar by the retailer. He said that the labels in the jars are differrent and the allegations of Wipro are baseless. Advocate Arun C Mohan also appeared for Heinz India. The Court adjourned the matter for hearing.

Earlier, Justice R Subbiah in an order on June 10, 2015, dismissed the application of Wipro which sought interim injuction restricting Heinz and others from using the mark Volt or similar sounding marks, using the tagline "Instant Energy. Anytime. Anywhere" or "Energy of Glucon-D Anywhere Anytime" or similar sounding lines and manufacturing or marketing any kind of products using the colour scheme and get up similar to its product.

Wipro alleged that although, Heinz's product is marketed along with their brand name GLUCON-D, the adoption of the nearly identical trademark Volt in respect of the identical product shows the mala fide nature of Heinz India and the other defendants. It submitted that Wipro has filed applications seeking registration of the trademark BOLTS and the said application is still pending for registration. It added that while the company markets the product under the tag line 'Instant Energy...Anytime Anywhere', Heinz has also adopted the tag line 'Energy of GLUCON-D Anywhere Anytime' and the colour schemes are identical.

It alleged that that Heinz India and others further attempts to copy its artwork, chose to place the pricing of its product at Rs 10 in a perforated circle form in a similar manner as done by Wipro.

Defending all the allegations of Wipro, Heinz India and others said that the mark Volt is not similar or identical to expression Bolts, visually, phonetically and structurally and Glucon-D is a well known trademark and a common household name and has established a mark for itself. Both the products of Wipro and Heinz are known under the trademark Glucovita and Glucon-D respectively and themark Bolt/Bolts are common generic expressions, it argued.

"The bona fide intent of the first defendant (Heinz India) is evident in the act of the defendants to file for registration of the mark GLUCON-D VOLT instead of just VOLT," it argued.

Justice R Subbiah, while dismissing various grounds raised by Wipro, said that prima facie the label mark of Heinz India is well distinguished from the mark of Wipro and any alleged violation by Heinz India could be established only during the course of the trial. The issue as to whether there is any similarity between the two labels has to be gone into only during the course of trial.

"...I am of the opinion, the plaintiff has not made out a prima facie case to grant an order of interim injunction in their favour at this stage and the balance of convenience is also not in their favour and the entire issue involved in this case has to be decided only at the time of trial. Therefore, I am not inclined to grant an order of interim injunction in favour of the plaintiff and all the applications are liable to be dismissed," he said. It is against this order the company approached the division bench.