FINANCIAL EXPRESS
Indu Bhan
NEW DELHI

The Delhi High Court has barred Nestle from claiming exclusive or vested right to the name of its sauce variant, ‘Chilli Garlic.’However, it has upheld Nestle’s exclusive right to its other two sauce brands, ‘Masala Chilli’ and ‘Hot & Sweet’.

Nestle had filed a petition averring violation of intellectual property rights on account of Gopal Agencies’ ‘malafide’ imitation of 200 gm bottles with identical three variants ‘Hot and Sweet,’ ‘Chilli Garlic’ and ‘Masala Chilli’. While Nestle had launched these variants between 1985 and 1987, Gopal Agencies started marketing these from April 2003.

While pronouncing its judgement, Justice Mukul Mudgal held, “The sauce ‘Chilli Garlic’ comprises of ingredients chilli and garlic and both the words are generic and descriptive of the contents and the quality of the product.’ Consequently, Nestle cannot claim any exclusively or vested rights in it.”

It further said that the visual representation of two competing bottles indicates that an average customer was not likely to be misled into buying the specialised sauces. The customer to be reckoned here is one of average and not sub-average intelligence, it added. However, Gopal Agencies agreed to market its cap without stirations similar to the Nestle on the cap.

About ‘Masala Chilli’ and ‘Hot and Sweet’, the court said that the Nestle’s products by being in the market for almost two decades had acquired a descriptive and seconday reputation. Besides, the fonts and placement of letters of competing bottles were identical with that of Nestle’s. “Accordingly the defendants are restrained from using the sub-brands ‘Masala Chilli’ and ‘Hot & Sweet’ in respect of their sauces during the pendency of the suit,” the court said.

Petitioner’s counsel Partibha M Singh had contented that Nestle being a worldwide company had built an enviable reputation due to extensive advertising. And the defendant was resorting to unfair competition by adapting identical shape, labels and packaging and was using petitioners goodwill to enrich itself unjustly.

© 2004 The Indian Express Online Media Ltd.