PROJECT REPORT

on

THE COCA COLA COMPANY

VS
BISLERI
MAAZA TRADEMARK WAR

Submitted to:
Mrs Monica Suri

Submitted By:

Samiksha Bhardwaj ( f-16)

Simple Sharma (f-17)
Anshika Chhabra (f-
18)
Jitin Mehta (f-27)
Vivek Chaudhary (f-
43)
Shamsher Jang (f-44)
Siddharth Birla (f-45)

1
 ACKNOWLEDGEMETS

Our law project i.e. THE COCA COLA COMPANY VS

BISLERI ‘MAAZA’ TRADEMARK WAR is an
example of teamwork under able guidance.

We would like to thank Ms Neerja (HRM ,Bisleri

Shahibabad ) and Mr Manish Kumar (Distributor Coca
Cola ) whose essential factual help has provided a
significant input to this esteemed project.
We would also like to express our sincere gratitude
to our ever helpful faculty Mrs Monica Suri , under
whose guidance we have not only understand but
have applied our knowledge to put across such an
important project successfully .

Thank you

2
vs

3
 TRADEMARK WAR

S.N CONTENTS PAGES

O
1. INTRODUCTION 3

2. HISTORY 9

3. IPR 22

4. NON COMPETE 26
AGREEMENT
5. 35
CONTRACT LAW
6. 37
FACTS OF THE CASE
7. 44
HEARINGS DETAILS
8. 47
STUDENT VERDICT
ANALYSIS

INDEX

4
 ‘THE SWEET TASTE OF PURITY”

Bisleri was originally an Italian Company created by

Signor Felice Bisleri who first brought the idea of
selling bottled water in India. Bisleri then was
introduced in Mumbai in glass bottles in two varieties
bubbly & still in 1965. Parle bought over Bisleri
(India) Ltd. in 1969 and started bottling water in
glass bottles under the brand name Bisleri. Later
Parle switched over to PVC non-returnable bottles &
finally advanced to PET containers. Since 1995 Mr.
Ramesh J. Chauhan has started expanding Bisleri
operations. In 2003 Bisleri announced its venture to
Europe.

The brand name Bisleri is so popular in India that it is

used as generic name for bottled water. [In India,
Bisleri is to bottled water what Xerox is to
photocopying.]

PARLE BISLERI BEGINS……

According to the Bureau of Indian Standards there

are 1,200 bottled water factories all over India (of
which 600 are in one state -- Tamil Nadu). Over 100
brands are vying for the Rs 1,000-crore (Rs 10 billion)
bottled water market and are hard selling their
5
products in every way possible -- better margins to
dealers, aggressive advertising, catchy taglines.... In
such a scenario, The Strategist takes a look at how it
all started -- with Bisleri -- and how Ramesh
Chauhan, chairman, Parle Bisleri created a market
out of pure water.
When they bought Bisleri mineral water from the
Italian company, Felice Bisleri, in 1969 -- the
company had been unable to market bottled water
and wanted to exit the market -- they too did not see
any potential for the product at that time.

As a soft drinks company, they had Thums Up, Gold

Spot and Limca (cola, orange drink and lemonade)
but no soft drink company was complete without a
soda. So they merely used the name and launched
Bisleri soda with two variants -- carbonated and non-
carbonated mineral water.

But three decades ago, what could they say about a

category that had no market? They didn't know their
target group. Then, since bottled water is colorless,
tasteless and odorless, it was not an easy product to
advertise.

Thus, the earlier brand building efforts focused on

Bisleri being healthy with adequate minerals. The
Italian name added a dash of class to it. The first
print ad campaign captured the international
essence and showed a butler with a bow tie, holding
two bottles of Bisleri.

The punch line was, "Bisleri is veri veri extraordinari"

(the spelling of the punch line was designed to

6
capture the consumer's attention). The campaign
was successful and they were being noticed as
someone who catered to the need for safe, healthy
drinking water.

However, the real boost to mineral water came in the

early-to-mid-1980s when they switched to PVC
packaging and later to PET bottles. The PET
packaging did not just ensure better transparency --
they could now show sparkling clear water to the
consumers. It also meant better life for the water..

ABOUT THE PRODUCT:

Bisleri according to consumer need develops 8

unique pack sizes. These different sizes bottles full
need of every kind of individual. The sizes of packs
are as follows 250 ml cups, 250 bottels, 500 ml, 1lt,
1.5 lt, 2lt, 5lt and 20lt these are non returnable packs
and 5 and 20 l are returnable packs

Bisleri provides with many different kinds of products

these are
• HIMALAYAN WATER: This is filled with natural
Himalayan water which flows through natural
filters, natural herbs and mineral rich rocks. This
product is available in 500ml and 1 l bottles

• BISLERI WITH ADDED MINERALS : Bisleri with

added minerals has a TDS count of 100(approx).
7
 Minerals which are added are magnesium
sulphate and potassium bicarbonate it also goes
through multiple stages of purification to ensure
the eliminating of all kinds of bacteria. This
product is available in 250 ml cup ,250 ml
bottles, 500 ml bottles , 1l bottle and 1.5l bottles
, 2l bottle and 5 and 20l cans

• MOUNTAIN WATER: This is another innovation of

bisleri company where mountain water is
packaged which contains natural water from
northern India mountains

These are some of

the main products
offered by bisleri international .

OPERATION OF BISLERI: –

8
The Bisleri bottled water range comprises the
conventional 500 ml, one liter, 1.2 liter and two liter
bottles; five liter and 20 liter jars for the home
segment, and smaller packs sizes of 250 ml cups and
330 ml bottles, though in very limited numbers for
now. Among all pack sizes the brand straddles, it is
the one-liter non-returnable bottles priced at Rs 10
each, and the 20-litre jars for Rs 40 aimed at the
home segment that are Bisleri’s bestsellers at
present. While the 20-litre jar comprises about 40 per
cent of overall Bisleri sales, the one-liter bottles
account for approximately 25 per cent brand sales.
The main source of water is bore wells from where
they get thee water. Then the raw materials required
for the bottle is PET i.e. poly ethylene terephatalable.
There are 250 workers working in Mumbai and 3000
all over India. The production process adopted by
bisleri is batch production. The time taken to fill one
bottle is approximately 5 minutes. The workers work
in 3 shifts which comprises of 60-70 workers per
shift. The maintenance of the machines is done every
month and every 45 days there is sanitation and
cleaning of the machine.

Bisleri to set up 25 new bottling plants

Ramesh Chauhans’ Mineral water major Bisleri

International plans to set up 25 new bottling plants
across India and aims to achieve a 40 per cent
growth rate in the current fiscal, a top company
official said
9
In 2003 Bisleri announced it's venture to Europe.
Subsequently, the turn over has multiplied more than
20 times over a period of 10 years and the average
growth rate has been around 40% over this period.
Presently Bisleri have 8 plants & 11 franchisees all
over India. The brand name Bisleri is so popular in
India that it's used as generic name for bottled
mineral water. Bisleri has 60% market share in
packaged drinking water in India. Its operations run
throughout the subcontinent of India. Overwhelming
popularity of 'Bisleri' & the fact that we pioneered
bottled water in India, has made it synonymous to
Mineral water & a household name.

10
 The world's most recognized
trademark in the World!
It is recognized by 94% of the
world's population.

Coca-cola at a glance:
The world has changed since pharmacist , john styth
pemberton first introduced the refreshing taste of
coca-cola in Atlanta , Georgia. The name and product
mean so many things to hundreds of millions of
consumers around the globe. coca cola products are
served more than 705 milion times every day
,quenching the thirst of consumers in more than 195
countries in every climate

INTRESTING FACTS ABOUT COKE:

MAY 1886: Pemberton concocted Caramel coloured

syrup in a three legged brass kettle in his backyard.
He first “distributed” the new product by carrying
COCA COLA in a jug down the street to Jacobs
pharmacy. For 5 cents consumers could enjoy a glass
of COCA COLA at soda fountain whether by design or
accident, carbonated water was teamed with new
syrup, producing a drink that was proclaimed to be
very refreshing Dr. Pembertons partner and book
11
keeper, frank M. Robinson, suggested the name and
penned, in the unique flowing script that is famous
world wide today

THE MAN BEHIND COKE

In 1886 sales of coca cola averaged nine drinks per

day. That first day, Dr. Pemberton sold 25 gallons of
syrup. They chose color RED for their shipment as it
was an distinctive colour. In 1891 Asa g .candler had
acquired complete ownership of coca cola business.
With in 4 years, Candler’s merchandising flair helped
expand consumption of coca cola to every state and
territory

MILESTONES IN COKE HISTORY:

In 1893 January “coca – cola “was registered in the

U.S. patent office
Chandler’s great achievement—IN 1899 large scale
bottling of coca – cola was started

12
In 1917 3 million bottles were sold per day with trade
mark of worlds most recognized trade mark
1923- Company was sold to Ernest woodruff for 25
million dollar he gave coca cola to his son Robert
woodruff under his leadership he sold coke in 40
other countries and moreover sales of coke raised to
6 million per day.

ONE GREAT EARMARK THAT THE COCA COLA

COMPANY has helping the people of Atlanta. They
accomplish this through scholarships, donations and
contributions. Another large accomplishment that the
coco cola company has is that it was the first
company to make use of recycled plastic bottles.

In 1928 coca cola was introduced in Olympic Games

In novice six pack and open top colour packaging,
which facilitated people’s access to the brand. Coca
cola even grew during World War II. After the crisis
coca cola expanded its business and went places. By
1960 coca cola became symbol of American lifestyle

The success story of the company can be estimated

from the fact that it entered second century without
looking back. Company diversified with its
introduction of new flavor such as fanta sprite etc.
the advertising strategy helped the company in
making the brand popular.

Soon after diet coke was launched in the market.

This was the first extension of coca- cola trademark
and proved to be great success after cola. In 1990
the wide scale association of the brand with various
spots events escalated the growth of company.

13
This expansion continued with the acquisition of the
brands like LIMCA, MAZZA THUMPS UP etc. In effect,
by 1997, the company sold 1 billion servings of its
products everyday

Coca Cola in INDIA

COCA COLA came back to India in 1993. Making huge

investments in Indian soft drinks market Ever since
its business is growing and being expanded in India
with launching of new products , waste water
treatment plants , new distribution systems and
marketing channels

COCA COLA INDIA is among the country’s top

international investors, having invested more than
US $ 1 billion in India in the first decade, and further
pledged another US $ 10 MILLION from 2003 and
further

CREATING ENORMOUS JOB OPPORTUNITIES:

The business system of the company directly

employees 6000 people, indirectly creates
employment for more than 125000 people in related
industries through its vast procurement, supply and
distribution system

The Indian operations comprises of 50 bottling

operations, 25 owned by the company, with another
25 being owned by the franchise. That apart, a

14
network of 21 contract packers, manufactures a
range of products for the company on distribution
part 10 tonne trucks – open bay three wheelers that
can navigate the narrow alleyways of Indian cities –
constantly keep brand available in every part of the
country.

BRANDS OF THE COMPANY:

1. COCA-COLA

15
In INDIA coca cola was the leading soft drink until
1977 then after due to some changes in government
policies coca cola Company made to depart from
India however the company ensured its return in
1993 by along with making huge investment which
till now proved to be successful

There are various sizes available such as

GLASS: - 200ml, 300ml, 500ml, 1000ml

PET:- 500ml, 1l , 1.5l, 2l, 2.25l, 500+100ml

CAN: - 330ml

FOUNTAIN: - VARIOUS SIZES

2. THUMS UP

This brand is the most trust worthy one in India. It

was acquired by coca cola on 1993. however the
brand was originally introduced in 1977.

16
Known for its strong cola taste

Various sizes available:

GLASS: - 200ml, 300ml, 500ml, 1000ml

PET: - 500ml, 1l, 2l, 2.25l, 500+100ml

CAN: - 330ml

FOUNTAIN: - VARIOUS SIZES

3. MAZZA

Mazza was initially introduced in 1976 but later it

was acquired by coca cola in year 1993
17
 Various sizes available:

GLASS:-200ml, 250ml

TETRAPAK: - 125ml, 200ml

PET: - 1000ml

FOUNTAIN SIZE: VARIOUS

4 KINLEY

Kinley is packaged drinking water provided by coca

cola its main competitors are aquafina, bisleri many
more

Availability of various sizes

PET:-500ml, 1000ml

5. MINUTE MAID PULPPY ORANGE

18
 It is a 62 years successful story. This product
history goes back to 1945 when Florida Food
Corporation developed an orange juice powder
later the company found an process which
eliminated 80% water from orange juice and
resulted in concentrated juice

Availability of various sizes

PET: 400ml, 1l, 1.25l

INTELLECTUAL PROPERTY
RIGHTS

AN UNDERSTANDING OF INTELLECTUAL
PROPERTY:

19
Intellectual property basically refers to creations of
mind they can be inventions, literary and artistic
works and symbols , names , images and designs
used in commerce

INTELLECTUAL PROPERTY CAN BE DIVIDED

INTO TWO CATEGORIES:

Industrial property:
This included patents, trademarks, industrial designs
and geographic indications of source

Copyrights:
Which includes literary and artistic works such as
novels, poems and plays, films , musical works ,
artistic works such as drawings , paintings ,
photographs and sculptures , and architectural
designs . Rights related to copyright include those of
performing artists in their performance, procedures
of phonograms in their recording, and hose of
broadcasters in their radio and television programs

WHAT ARE INTELLECTUAL PROPERTY

RIGHTS:

Intellectual property rights are a bundle of exclusive

rights over creations of the mind, both artistic and
commercial
There is a well-established statutory, administrative
and judicial framework to safeguard intellectual
property rights in India, whether they relate to
patents, trademarks, copyright or industrial designs .
The Indian trade mark law has been extended
through court decisions to service marks in addition
20
to trade marks for goods. Computer software
companies have successfully curtailed piracy through
court orders. Computer databases have been
protected. The courts, under the doctrine of breach
of confidentiality, accorded an extensive protection
of trade secrets. A right to privacy, which is not
protected even in some developed countries, has
been recognized in India.

Protection of intellectual property rights in India

continues to be strengthened further. The year 1999
witnessed the consideration and passage of major
legislation with regard to protection of intellectual
property rights in harmony with international
practices and in compliance with India’s obligations
under TRIPS

TRIPS:

TRIPS stand for trade related aspects of intellectual

property rights. It is an international agreement
administered by the world trade organization that
sets down minimum standards for many forms of
intellectual property regulation. It was negotiated at
the end of the Uruguay round of the general
agreement on tariffs and trade (GATT) IN 1994

Trips contains requirements that nation’s law must

meet for
: copy rights , including the rights of performers ,
producers of sound recording and broadcasting
organizations , monopolies of new plant varieties ,
trademarks , trade dress and undisclosed or
confidential information .

21
The TRIPS agreement introduced intellectual
property law into the international trading system for
the first time and remains the most comprehensive
international agreement on intellectual property to
date. After the Uruguay round, the GATT became the
basis for the establishment of the world trade
organization membership. As the rectification of
TRIPS is a compulsory requirement of world trade
organization membership, any country seeking to
obtain easy access to the numerous international
market opened by world trade organization must
follow the strict norms , rules regulation laid by
TRIPS. That is why TRIP is a very important
multilateral instrument for globalization of
intellectual property rights

SOME OBLIGATIONS UNDER TRIPS:

1. The patents amendment act, 1999 passes by

the Indian parliament on march 10, 1999 to
amend the patents act of 1970 that provides for
establishment of a mail box system to file
patents and accords exclusive marketing rights
for 5 years

The trade marks bill, 1999 which repeals and

replaces the merchandise marks
act, 1958 passed by the Indian parliament in the
winter session that concluded on December 23 ,
1999

22
 2. The copyright amendment act , 1999 passed by
both houses of the Indian parliament , and
signed by the president of India on December
30, 1999

3. The industrial designs bill , 1999 which replaces

the designs act , 1911 was passed in the
upper house of the Indian Parliament in the
winter session which concluded on 23
December, 1999 and is presently before the
lower house for its consideration

4. The patents ( second amendment ) bill , 1999 to

further amend the patents act , 1970 was to
make it TRIPS compliant ,was introduced in the
upper house of Indian parliament on December
20, 1999

CONCERNS EXPRESSED OVER IPR

PROTECTION AND INDIA’S RESPONSE:
It has been alleged the there is absence of
effective patent protection in the pharmaceutical
sector. India does provide for patents in the
pharmaceutical sector. However, in term of section 5
of the patents act, the patents are presently
restricted to the methods or process of
manufacturing and not extended to the substances /
products themselves.

23
It has been further alleged that India has failed to
meet its current obligations required under Articles
70.8 and 70.9 of the TRIPS agreement by
implementing appropriate conforming mail box and
exclusive marketing rights procedures. However, the
government of India has taken the following steps to
meet its obligations under articles 70.8 and 70.9

• Passed an ordinance to provide a means to

receive product patent applications in the fields
of pharmaceuticals and agricultural chemical
products

• Established a mail box system through

administrative instructions, numerous
applications have already been filled in this mail
box system ,a and many of them have been filed
by US companies

• Has made changes to its patents act to put in

place a machinery for implementation of articles
70.8 and 70.9 by providing for establishment of
a mail box system to file patents and according
exclusive marketing rights for 5 years .this
provision was made in the patents act of 1999

INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS

24
A publisher may own a copyright of his book and
his book is sold without his consent and at reduced
price which may harm his investment then this
said to be an example of infringement of
intellectual property.

Another example for infringement when someone

sound producer invested large amount of money ,
in terms of talent or technical skills , in order to
produce a music record and then after if he sees
that copies of which are being sold in market at a
cheap rate without its authorization then this could
also be termed as an infringement case

Most common type of infringement can b of trade

marks that is someone else’s trade has been used
by accompany on similar or identical goods of
lesser quality , harming thus the reputation of the
legitimate owner , and inflicting on him or her
serious financial losses , let alone exposing
customer health to danger

Another case of intellectual property infringement

can be of geographical denomination like the case
of ‘Roquefort’ on cheese manufactured elsewhere
than in the region Roquefort in France, thus
deceiving the customers as well as taking away
business from legitimate producers

In all such cases intellectual property rights (i.e.

copy rights, related rights , trade marks ,
geographical indications ) have been infringed. It is
important in such cases that some mechanism
should be enforced in order to protect this property
in the rights of owner, but also the public. Thus

25
 some enforcement measures are a must in this
situation that is where our governing body trade
related aspect of intellectual property or in other
words TRIPS comes into the picture to sort the
matters and dispute efficiently

NON COMPETE AGREEMENT

Non- compete agreement are often drafted as part of
a basic employment contract, or included as a
separate document which is signed at the beginning
of a term of employment. It basically ensures that
upon termination of the employment period, the
former employee will not engage in activities that
place him or her in direct competition with their
former employer. While the exact terms of an non
compete agreement may vary and are subject to
local laws regarding employment, the non compete
agreement is generally an effective means to ensure
that former employees do not make use of
proprietary information to lure away and thus
damage their former employment

In many instances, the non-compete agreement is

contained as a section or clause in the larger
employment contract. State laws will often come into
play in determining what types of provisions may be
legally included. For instance, in a right to work
state, a former employee could not be prevented
from going to work for a competitor, although the
former employee would be open to litigation if he or
she contacted customers of the corporation for the
purpose of luring their business away.

26
Companies have often invested a great deal of
money in building a client base or perfecting
processes or inventions. These things need to be
kept confidential in order to survive in the business
world. Employees in sales or manufacturing are often
exposed to important secrets including customer lists
or trade secrets. Companies understandably want to
protect this information. The result is a non-compete
agreement.

VALID AND INVALID NON COMPETE

AGREEMENT
Non-compete agreements are treated differently
from regular contracts. Unlike most contracts for
employment, the non-compete agreement has the
effect of inhibiting commerce. Public policy favors
people having jobs and being productive. As a result,
a non-compete agreement has to be properly limited
geographically, temporally (length of time of the non-
compete), limited by industry, and limited to a
legitimate interest of the company.

A non-compete agreement which prohibits someone

from working anywhere in the world is far less likely
to be valid than one which prohibits someone from
working within 10 miles of the former employer’s
business. But this will depend on the kind of work.
The salon described above may have an interest in
keeping the stylist from competing across the street.
But if the non-compete agreement says nowhere in
the state, it becomes less reasonable. If the
hairstylist can find a job in the state 50 miles away,
most of the clients will not travel that distance for
the service, but will stay with the salon. On the other
27
hand, this non-compete could force the hairstylist to
move to look for work or otherwise to travel
hundreds of miles.

A non-compete must also be for a limited time. If the

hairstylist is gone for a year, the salon can expect
that the vast majority of the customers will have
found other stylists at the salon or elsewhere and the
hairstylist will likely do little harm to the business.
Thus, keeping the hairstylist out of work for three
years does little to help the business, but seriously
harms the hairstylist.

In the end, to be valid a non-compete agreement

must be narrowly tailored to meet the needs of the
employer which will be balanced against those of the
employee. If you are preparing a non-compete
agreement, you need an experienced lawyer to draft
it in a way that it will not be held invalid. If you are
dealing with a non-compete agreement as an
employee, there are lots of ways to attack it.

Problems from Non-Compete Agreements

There are several different ways that non-compete

agreements can impact the parties once an
employee leaves a business. If the employee find
another job, the former employer may have a claim

28
or file a case against the employee to make him quit
the new job. If the new employer asks to see an old
non-compete agreement it may refuse to employ the
individual and thus an individual can have a great
deal of difficulty finding work.

There are three basic things that employment

lawyers (specifically non-compete lawyers) face in
these circumstances.

• The first is to negotiate with the former

employer or employee.
• If the former employer files a case against a
former employee who is violating a
Non- Compete agreement.
• The third is where the former employee files a
case against the employer to have the Non-
Compete agreement declared invalid by a court.
This last is called a declaratory judgment action.

The first step which could be taken in addressing a

dispute between a former employee and a former
employer is to attempt to negotiate a compromise.
What is it that the former employer really needs to
protect? Is the employee really looking for work that
will hurt the former employer? Can the work that the
employee is taking be limited within the new
company so as to satisfy the employer? As Non-
Compete lawyers we try to create an agreement that
saves both parties the cost and trouble of a court
battle. More often, an accommodation can be made
so long as the employer and employee are being
reasonable.

29
If an employee takes a position which the former
employer believes is in violation of the non-compete
agreement, it may sue the employee seeking a court
order to prevent the employee from working. The
former employer has a heavy burden in such cases.
First, it is going to have to show that the employee
has in fact taken or threatened to take an action in
violation of the non- Compete agreement. It is then
going to have to prove to the court that the non-
Compete agreement is valid – that is that it is for a
valid purpose and limited in time and geography. But
at the same time, to keep her job, the employee
must defend this case.

The other possibility is that the employee is unable

to find a job. In this situation, the employee may file
a case asking a court to declare the Non-Compete
agreement to be invalid. As previously discussed, the
law heavily favors the employee. If the court enters a
“declaratory judgment” finding the non-compete
agreement to be invalid, it may either change the
non-compete agreement or eliminate it altogether.

30
TRADE MARKS ACT, 1999
[Act No. 47 of Year 1999 dated 30th. December,
1999]

1. Short title, extent and commencement

(1) This Act may be called the Trade Marks, Act,
1999.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the
Central Government may, by notification in the
Official Gazette, appoint: PROVIDED that different
dates may be appointed for different provisions of
this Act, and any reference in any such provision to
the commencement of this Act shall be construed as
a reference to the coming into force of that provision.

2. The Register of Trade Marks

(1) For the purposes of this Act, a record called the
Register of Trade Marks shall be kept at the head
office of the Trade Marks Registry, wherein shall be
entered all registered trade marks with the names,
addresses and description of the proprietors,
notifications of assignment and transmissions, the
names, addresses and descriptions of registered
users, conditions, limitations and such other matter

31
relating to registered trade marks as may be
prescribed.

(2) Notwithstanding anything contained in sub-

section (1), it shall be lawful for the Registrar to keep
the records wholly or partly in computer floppies
diskettes or in any other electronic form subject to
such safeguards as may be prescribed.
(3) Where such register is maintained wholly or
partly on computer under subsection
(4) Any reference in this Act to entry in the register
shall be construed as the reference to any entry as
maintained on computer or in any other electronic
form.
(5) No notice of any trust, express or implied or
constructive, shall be entered in the register and no
such notice shall be receivable by the Registrar.

(6) The register shall be kept under the control and

management of the Registrar.
(7) There shall be kept at each branch office of the
Trade Marks Registry a copy of the register and such
of the other documents mentioned in section 148 as
the Central Government may, by notification in the
Official Gazette, direct.
(8) The Register of Trade Marks, both Part A and Part
B, existing at the commencements of this Act, shall
be incorporated in and form part of the register
under this Act. 1.

32
Relevance of the Indian contract act 1872, in
intellectual property rights---coke takes Bisleri to
court
Section 2(h) of the contract act defines a
contract as “an agreement enforceable by law”

Sir Fredrick Pollock says

‘Every agreement and promise enforceable at law is
a contract’
There are two essential elements of a contract:
1. An agreement

33
 2. Its enforceability at law

Thus these two components constitute the basis for

the contract and are explained as follows:
1. Agreement —every promise or every set of
promises forming the consideration for each other
2. Promise – a proposal when accepted becomes a
promise

An agreement is the outcome of two consenting

minds i.e. ‘consensus ad idem’
AGREEMENT =OFFER + ACCEPTANCE

All agreements are not contracts .Only that an

agreement which is enforceable at law is a contract. .

ALL CONTRACTS ARE AGREEMENTS BUT ALL

AGREEMENTS ARE NOT CONTRACTS

ESSENTIAL ELEMENTS OF A VALID CONTRACT

According to section 10 “ All agreements are

contracts if they are made by the free consent
,competent to contract ,for a lawful consideration
and with a lawful object and not expressly declared
to be void or illegal”

34
The following are the essential elements of a
valid contract:

1. OFFER AND ACCEPTANCE: in order to create a

valid contract there must be a lawful offer by one
party and a lawful acceptance by the other party.The
adjective “lawful” means offer and its acceptance
must confirm to the rules laid down in the Indian
contract act, 1872

2 .INTENTION TO CREATE LEGAL RELATIONSHIP : in

case there is no intention on part of parties there is
no contract .Agreements of social or domestic nature
do not contemplate legal relations

35
3. LAWFUL CONSIDERATION: Consideration is
defined as quid pro-quo or something in return. The
legal maxim being ( Out of a bare agreement no
action arises)------ex nudo pacto non oritur actio ..

4. CAPACITY OF PARTIES: the parties to an

agreement must be competent to contract. IF either
of the parties does not have the capacity to contract
the contract is not valid
Accordingly the following persons are competent to
contract.
a) Minors
b) Persons of unsound mind
c) Persons disqualified by law to which they are
subject

5. FREE CONSENT: two or more persons are said to

contract when they agree upon the same thing in the
same sense. This is called consensus ad idem in
English law
According to section 14, consent is said to be free
when it is not caused by-
1. Coersion
2 Undue influence
3. Fraud
4 Misrepresentation
5. Mistake

6 LAWFUL OBJECT: The object must be lawful.

Object has nothing to do with consideration. The
object is said to be unlawful if:
a) It is forbidden by law

36
 b) It is of such nature that if permitted it would
defeat the provisions of the law
c) It is fraudulent
d) It involves an injury to the person or property
of any other
e) The court regards it as immoral or opposed to
public policy

7 CERTAINTY OF MEANING: according to section

29,” the meaning of which is not certain or capable
of being made certain are void” .the terms of the
contract must be precise and certain

8. POSSIBILITY OF PERFORMANCE: If an act is

impossible in itself, physically or legally, it cannot be
enforced at law .For example Mr. A agrees with B to
discover treasure by magic . Such agreements are
not enforceable

9. NOT DECLARED TO BE VOID OR ILLEGAL: The

agreement though satisfying all the conditions for a
valid contract must not have been expressly
declared void by any law in force in the country

10. LEGAL FORMALITIES: An oral contract is a

perfectly valid contract, except in those cases
where writing, registration etc is required by some
statue

37
1. OFFER AND ACCEPTANCE:

IPR agreements dating back to 1993 and 1994,

which were signed between .The Coca-Cola Company
and Aqua Minerals (now known as Bisleri).

2. INTENTION TO CREATE LEGAL

RELATIONSHIPS

Coke was given the property right ---to use Maaza

trademark in india.But it started using the trademark
outside India

Mr Chauhan had challenged TCCC’s moves to

register the Maaza trademark outside India and sent
a legal notice to TCCC, its affiliates and franchisees
to stop the production of Maaza within a month
recently. Mr Chauhan claimed the trademark, Maaza,
was sold to TCCC only within India and that the
licensee (Bisleri) was the registered proprietor of the
trademark outside India.

Bisleri International Chairman Ramesh Chauhan said:

“Since there is no question of us trying to use the
brand name in India, Coca-Cola’s move is beyond our
comprehension. The issue is about using the brand
name outside India for which we retain the IPR as the
creator of the brand and formulation.”

3. CAPACITY OF PARTIES: No person was of

unsound mind when the contract was made.

38
 The other conditions were duly fulfilled. Free
consent was there .It was a lawful object, had
certainty of meaning, there was certainty of meaning
.It was not vague, there was possibility of
performance and all legal formalities were complied
with

OTHER FEATURES OF THE CONTRACT ACT

1. REPUDIATION OF THE CONTACT:

New Delhi, Sept 16, 2008: After slapping a legal

notice on global soft drinks major Coca Cola over
'Maaza', bottled water major Bisleri on Tuesday said
it would seek cancellation of registration of the
trademark in India if the two parties failed to reach
an agreement The legal effect is that the old contract
is sacked and is no more in existence now.

2. RIGHT TO CLAIM DAMAGES

Remedies for breach of contract

The primary purpose of awarding damages is to put

the Injured person in a good position as he would
have been if performance would have been rendered
as promised.

39
Chauhan said Bisleri had last week sent notices to
Coca Cola seeking compensation of 50 million dollars
over what he termed as "Coke's violation of the
original agreement between the two companies in
1993-94" for the sale of the brand.

3. INJUNCTION BY THE HIGH COURT

Coca-Cola Company (TCCC) has filed a case in the

Delhi High Court asking the court to restrain Bisleri
International from infringing on the Maaza trademark
in India. TCCC has also sought to restrain Bisleri and
its sister concerns from disclosing the know-how,
formulation and other intellectual property used in
the preparation of Maaza.

The move follows a recent legal notice from Mr

Chauhan to TCCC, threatening to cancel the
agreements signed between them and de-register
the brand name for allegedly violating the
agreements. TCCC has obtained a preliminary order
from HC restraining Bisleri International from using
the Maaza trademark in India

4. LEGALITY OF OBJECT AND CONSIDERATION

‘The local commissioners found illegal manufacture

of beverage bases for Maaza by a certain entity
owned by a former employee and head of the
concentrate division of Parle. It will need to be
determined how Ramesh Chauhan permitted such
40
third-party manufacture to go on despite the licence
agreement expressly prohibiting it and despite
signing a confidentiality and non-use agreement with
The Coca-Cola Company’ the Coca-Cola
spokesperson said.

According to section 23 OF THE CONTRACT

ACT, an agreement of which the object or
consideration is unlawful is void.

The consideration or the object is unlawful in the

following cases:
1. It is forbidden by law
2. It is of such a nature that if permitted it would
defeat the provisions of any law
3. It is fraudulent
4. If it involves injury or implies injury to the
person or property of another
5. If the court regards it as immoral
6. If the court regards it as opposed to public
property

41
 FACTS OF THE CASE
1. In the year 1993, The Coca Cola Company
(TCCC)re-entered the Indian market after its
exodus in the year 1977. After a long gap the
company wanted to establish its own market in
the soft drink segment. So in order to capture
the market , The Coca Cola Company offered the
purchase for several brands from the Bisleri
Company (formerly known as Aqua Minerals).
Bisleri accepted the offer and decided to sell out
its brand (mainly soft drink brands) to The Coca
Cola Company(TCCC) .

2. Bisleri sold out its several brands including

Thumps- Up, Maaza, Limca, Gold Spot and Rim
Jhim to The Coca Cola Company and received
the handsome amount in return. In the year
1993-1994 an agreement was signed between
The Coca Cola Company(TCCC) and the aqua
minerals(now bisleri ). As per agreement (from
the point of view of bisleri ) maaza, was sold to
tccc only within India and the license (bisleri)
was registered proprietor of the trademark
outside india. the intellectual property rights for
creation of the brand , maaza, rests with the
bisleri and tccc tried to register the trademark
outside India.

42
3. However coca cola tried to file for the
registration of “Maaza” trademark in turkey on
april 12,2007. although it withdrawn from it later
on. TCCC also applied for the registration in
Europe. So due to above actions of TCCC , Bisleri
Chaiman , Mr.Ramesh Chauhan sent a legal
notice asking the coca cola for compensation of
Rs 20 crore figure for the damage. And he also
assured that in case of delay of the damages,
the Bisleri would increase the damage claim. So
Bisleri held The Coca Cola Company(TCCC) for
the breach of IPR(Intellectual Property Right),and
stated that “the legal counsel maintains that
stealing of IPR is a cognizable offence and is not
bailable and no reputable company would go
about stealing another company’s IPR.”

4. In return The Coca Cola Company(TCCC) stated

that the agreement signed in 1993 between The
Coca Cola Company and Bisleri do not exclude
the use of the trademark “MAAZA” by coca cola
company outside India where MAAZA was not
registered by any Bisleri entitites. The coca cola
company continued to state that it has not
breeched any agreement and has no intentions
in future to register the “MAAZA” brand in
countries outside India.

5. But later , in response to the compensation

asked by the Bisleri , The Coca Cola Company
filed a case against Bisleri in Delhi High Court
asking the court to restrain Bisleri International
from infringing on the Maaza trademark in India.

43
 TCCC also sought to restrain Bisleri and its
sister concerns from disclosing the know-how,
formulation and other intellectual property used
in the preparation of Maaza. TCCC defied itself
from stating that the agreement was “NON
COMPETE” agreement.

The case was there after taken under scrutiny and

its still waiting for its judgement. The details of the
case haering and court decisions are mentioned in
the next section of the report
Bisleri and The Coca Cola Company have locked
horns .The reason- a battle over the registration of
the trademark Maaza outside India!

HEARING PROCEDURE

44
What is this dispute all about ? Bisleri International
(Bisleri) was the registered proprietor of the
trademark Maaza. In the year 1993, an agreement
was signed between The Coca Cola Company (TCCC)
and Bisleri, which assigned all the rights on the
trademark Maaza to TCCC along with other brands
including Thums Up, Gold Spot, Limca and Rim-Zim.
Thereby TCCC purchased the rights over the brand
Maaza and became the owner of the IP rights of
Maaza.

45
*Currently few famous brands under Coca Cola India.

The dispute- the conflict arises when TCCC allegedly

attempted to register the trademark Maaza outside
India, particularly in Europe. According to Mr Ramesh
Chauhan Bisleri International Chairman Coke had
filed for the registration of Maaza in Turkey on April
12, 2007, which it has now withdrawn and previously
in Belgium and Netherland which however were also
withdrawn after severe protests from Bisleri
Internationals. Bisleri restrained the registration on
the ground that licencing of Maaza by Bisleri to TCCC
was restricted only to the territory of India and not

46
beyond that. According to Bisleri, TCCC had no right
to get the trademark registered outside India.
According to Bisleri the international rights over the
trademark was retained by Bisleri and not given to
TCCC in the agreement.

In June 2007, the Bisleri Group , sold the trademark

rights of Maaza for the international markets to its
bottlers, Infra Beverages, Europe, and House of
Spice, US, for a substantial undisclosed sum. Coca-
Cola, which owns the trademark in India, is believed
to have been interested in buying the rights for the
international markets.

Since TCCCs move to register the trademark Maaza

in Europe directly threatened Bisleris commercial
interests, they sent a legal notice to TCCC alleging
that TCCC had violated the initial agreement that
was signed between Bisleri and TCCC.

In the legal notice sent on September 7 2008, Bisleri

claimed upto $50 million dollars as damages for the
alleged infringement by TCCC. The legal notice had
called upon TCCC to stop the manufacture and
production of Maaza beverage or use of the
trademark either directly or through its associates.
Bisleri has also threatened to file for cancellation of
the Maaza trademark in India. Bisleri also allegedly
stated in the legal notice that it would start using the
trademark in India.

"We have sent notices to both Coca Cola's global

headquarter in Atlanta (USA) and also Indian
headquarter in Gurgaon. If they reply and we can

47
come to an agreement, it is okay, but otherwise we
would have to take legal recourse and seek
cancellation of registration of Maaza in India," Bisleri
International Chairman Ramesh Chauhan told
reporters after sending legal notice.

In fact, Bisleri claims that in the year 1993 the rights

for Thums Up, Gold Spot, Limca and Rim-Zim were
sold lock stock and barrel, except Maaza, whose
international rights were withheld by Bisleri
International.

After the receipt of the legal notice, TCCC moved the

Delhi High Court on 15th October 2008, restraining
Bisleri from taking the actions mentioned in the legal
notice sent to TCCC. TCCC maintained in the High
Court that even though it did not buy the trademark
Maaza outside India, there was no agreement that
granted Bisleri the right to use the formulations sold
to and owned by TCCC outside India.

The main contentions in the plaint were that there

was no document between the parties where under
the TCCC (plaintiff) was restrained from registering
the trademark even outside India or where under the
said right was exclusively vested in Bisleri
(defendant). TCCC maintained that there was no
noncompete agreement entered into by Bisleri to
restrain TCCC in relation to any country where the
Maaza trademark was not registered by Bisleri

48
Coca-Cola took its stand on the acquisition of the
Maaza brand and the fact that it has the rights to
take it to other markets. “Nothing restrains The
Coca-Cola Company from registering the Maaza
trademark in a particular jurisdiction outside India, if
the law of that jurisdiction so permits. According to
them there were over 10 agreements entered into in
relation to Maaza. The terms of those agreements
entered into between the Parle entities and The
Coca-Cola Company do not exclude the use of the
trademark Maaza by The Coca-Cola Company outside
India in countries (other than India) where Maaza was
not registered by any of the Chauhan Entities at the
time the transaction closed in November 1993.

Parle had the option of seeking a non-compete

agreement in relation to Maaza outside India, but for
reasons best known to them, they chose not to enter
into.

49
After hearing both parties, the Delhi High Court held
that TCCC is the registered owner of the trademark
and shall suffer irreparable loss and injury if Bisleri
carries out its threatened actions in the legal notice
and starts using the trademark Maaza in India which
Bisleri has not done for the last nearly 14 years.

Delhi High Court Order- The defendants (Bisleri) and

its officers, employees, agents, sister concerns and
associates were restrained by the Court from using
the mark Maaza or any other deceptively similar
trademark in relation to mineral and aerated water
and other non alcoholic drinks, syrup and other
50
preparation for making such beverages till the next
date of hearing. The defendants were also restrained
from using and/or disclosing to any person
whatsoever the know-how, formulations and other
intellectual property used in the preparation of the
beverage bases and beverages sold under the
trademark Maaza.

Bisleri then filed another petition asking HC to vacate

this order on the basis that it has no jurisdiction in
the matter, as both had there corporate offices in
Mumbai therefore it does not comes in its jurisdiction
area.

The Delhi HC, in its latest order passed on November

17, has ruled that it would not modify the injunctions
it had earlier granted in favour of TCCC and against
Mr Chauhan’s company.

Meanwhile Coco Cola was granted a preliminary

injunction against Bisleri from the Delhi High Court
restraining Bisleri International from using the Maaza
trademark in India and the matter was posted to
March 2, 2009 for further hearing.

Further, In light of the injunctions passed by the

Delhi High Court Bisleri approached TCCC requesting
for out of court settlement, stating that we are
businessman and are not supposed to fight court
battles.
Meanwhile on hearing date of March 2, 2009 both
parties asked Honourable Delhi High Court for more

51
time and that they r trying to reach a consensus
mutually.

The matter is scheduled for hearing in September,

2009.

ANALYSIS
COCACOLA’S ARGUMENTS
 TCCC claims that terms of the agreement
entered between the Parle entities and The
Coca-Cola Company does not prevents them
from registering trademark Maaza outside India
in countries where Maaza was not registered by
any of the Chauhan Entities at the time the
transaction closed in November 1993.
 Parle had the option of seeking a non-compete
agreement in relation to Maaza outside India,
but for reasons best known to.

52
 BISLERI ARGUMENTS
 Bisleri claims that in the year 1993 the rights for
Thums Up, Gold Spot, Limca and Rim-Zim were
sold lock stock and barrel, except Maaza, whose
international rights were withheld by Bisleri
International.

 According to Bisleri, TCCC had no right to get the

trademark registered outside India. According to
Bisleri the international rights over the
trademark was retained by Bisleri and not given
to TCCC in the agreement.

GROUP’S VERDICT

Although both the parties are now trying for out

of court settlement but still its too complicated
issue to be resolved easily since millions of stake
is on the line here.

This case has two very different perspectives to

be taken into account as both Coca Cola and
53
Bisleri are very rigid on their stand that they
both are very correct lawfully in their approach
and whole matter hangs through a very weak
string i.e an agreement which is incomplete in
itself as it did not provided adequate partition
line between two parties and not been able to
see its future was lack of thoughtfulness from
both the parties. This conflict was imminent in
its nature, it was just a matter of time to
happen.

First approach to look deep into this matter we

made through Bisleri’s point of view as they
claims that they only sold Indian rights of maaza
but they retained the international rights to
them and Coca Cola company has no overseas
rights of maaza. Bisleri has total rights to
manufacture and distribute it in international
markets and that rests with them and them only.

Now the second perspective is of TCCC as they

claims that there is nothing mentioned in
agreements about geographical limitations of
the executions so they are totally free to use it
wherever they want to if the jurisdiction of that

54
states permits them to do so and also Parle had
an option of entering into NON-COMPETE
agreement with TCCC but they chose not to
enter into it. As per TCCC although it did not buy
the trademark Maaza outside India, there was no
agreement that granted Bisleri the right to use
the formulations sold to and owned by TCCC
outside India.
After looking into the matter carefully group
unanimously reached onto that:-

Coca Cola as a matter of fact has made Maaza a

global brand by the virtue of the effort they put
into it after 1993.
As agreement does not stops TCCC from using
Maaza brand outside Indian territory and also
Parle had an option of entering into NON-
COMPETE agreement with TCCC outside india
which they didn’t chose to implement on paper.
But still Bisleri holds the international rights in its
hands therefore Coca Cola cannot register the
Maaza trademark outside Indian territory but as
per the agreement Coca Cola is allowed to
compete with it. Therefore Coca Cola can only
enter into overseas market if the law of that
jurisdiction permits it to use Maaza trademark
without registering it there.

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56