Bubbles On Trial: Delhi High Court Set To Hear Battle Over ‘Fizz' Between Parle Agro, PepsiCo

The Oxford Learner’s Dictionary defines a 'fizz' as the action of a liquid producing a lot of bubbles and making a long sound like an 's'. However, if you ask a chemistry student, they would like to use a more sophisticated meaning of the term – 'effervescence', an evident sound that occurs when carbon dioxide is released from a liquid. But if you were to ask a child standing before their local kirana shop, they would probably name a soft drink while explaining the meaning to you. 

This word is the core of a trademark battle that Parle Agro (the makers of ‘Appy Fizz’) has initiated against PepsiCo India Holdings (the makers of the 7Up cold drink). 

While the case is pending before the Delhi High Court and is slated to be heard on Monday, one may wonder if the Indian courts protect descriptive words such as ‘fizz’ for products like soft drinks.

Courts generally do not recognise exclusivity over descriptive words such as ‘fizz’ for carbonated beverages, but the protection can be enforced in the composite mark, for example, APPY FIZZ, and in the overall trade dress, including elements such as colour scheme, label design, and bottle shape, explained Essenese Obhan, managing partner at Obhan & Associates.

This is not the first time that a court of law will have to decide on the issue of descriptive marks. In fact, in 2020, the Delhi High Court heard an appeal in the case of Cadila Healthcare Ltd vs. Gujarat Co-operative Milk Marketing Federation. In this particular case, the point of contention was over the use of the words ‘sugar free’ for artificial sweeteners.

The Delhi High Court said Cadila Healthcare cannot stop others from using the term ‘sugar free’ for sweeteners because it is a common descriptive phrase, not a unique brand name. Also, the court noted that such products are mainly used by a small, elite group of consumers. Hence, exclusivity over the term was not granted to Cadila.

In another instance in 2020, ITC took Nestlé to court, claiming it had the exclusive right to use the phrase “Magic Masala” for its instant noodles, as it was the first to use it. The Madras High Court rejected ITC’s claim, saying that the word “Magic” was simply a feel-good term and could not be owned by any one company.

The court also noted that both “Magic” and “Masala” were common in the food industry, and no one could claim a monopoly over such everyday words. As a result, Nestlé was allowed to continue using “Magic Masala” for its noodles.

This is also not the first time that Parle Agro has had to approach a court of law in an attempt to protect its right in relation to its product ‘APPY FIZZ’.

In 2020, Parle Agro went to the Bombay High Court to stop Walmart from selling an apple-flavoured fizzy drink called “Fizzy Apple”. The court found that Walmart’s packaging — its design, colours, and overall look — was so similar to Parle’s Appy Fizz that people could get confused.

While the word “fizz” itself just describes a bubbly drink and can’t be owned by one company, the court said the overall packaging was too close.

It may be argued that one may succeed in getting a favourable order where a rival copies your overall trade dress so closely that consumers are likely to be confused.’ said Varun Pareek, partner at Emerald Law Offices.

Pepsi’s “Yeh Dil Maange More” was found distinctive; Tata Tea has “Jaago Re”, and Raymond has “The Complete Man”. These are some examples where taglines were granted acceptance, mentioned Anand.

In India, taglines or slogans are protected as intellectual property, and the level of protection depends on how distinctive they are and the manner of usage, he said.

Shedding more light on this, Obhan explained that the Trade Marks Office in India applies a stringent approach when examining applications for taglines, and the examiners are generally reluctant to grant monopolies over common expressions, essentially, everyday phrases that other traders may need to use in the course of trade.

As per the provisions of the Trade Mark Act, 1999, a tagline can be protected if it is unique and stands out. However, the tagline can’t just describe the product, use very common terms, or be a generic praise like “best ever”, unless over time people have come to strongly connect it only with that brand.

In this regard, Pareek explained that Indian courts have been reasonably effective in granting injunctions in cases of confusing similarities and passing off, especially when the plaintiff is able to show, through satisfactory material on record like market surveys, sales, etc., a strong association in the minds of the consumers.

This particular case by Parle Agro against PepsiCo India Holdings follows a prior legal proceeding initiated by the latter that sought to prevent Parle from using the tagline “For The Bold” for its “B Fizz” range. The Delhi High Court had rejected that plea.

However, the battle over the use of 'Fizz' is sub-judice, and it remains to be seen how the Delhi High Court will rule over it.