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Watering Woes in the Indian Bottled Water Industry – Creating and Protecting an Identity (Trademark)

Tussle over taming the grandeur of the highest mountain range in the world for a commercial venture has reached the courtrooms. Aquifers nestled in Himalayas have been used by the Tata Group (previously Mount Everest Mineral Water Ltd.) and Bisleri International to source a premium segment of bottled water (enriched in minerals) as a launch-pad to hoist their international flags and towards a niche uber-urban segment.

The trouble brews in the fact that ‘Himalaya’ is a registered TradeMark with the Tatas. The counter argument of Bisleri states that ‘Himalaya’ is a generic name. Both parties accessed the provisions of the Indian Judicial System by raising their respective claims. More specifically, Ramesh Chauhan (chairman, Bisleri International) has sought cancellation of Tata’s Himalaya brand through a rectification application filed with the Intellectual Appellate Board (IPAB), Chennai, based on the Geographical Indications Act which forbids the registration of a geographical name by a private company.

Statistics’ disclosures maintain that ‘Himalaya’ brand mineral water, currently owned by the Tatas was bought over from Dadi Balsam (an NRI from Singapore) in 1991. The bottles formerly had horizontally located circumferential ridges and square cross-sectional bottles. Bisleri, on the other hand kicked off their premium segment edition in December, 2006. They have only recently accelerated their marketing of said product. Visually, the bottles are unribbed/unridged carrying a vertical label called ‘Himalayan’ (and in small descriptive font ‘from the Himalayas’).

While the matter was heard in courts on June 23rd and June 24th, 2008, an interim arrangement has been sought by both parties whereby, Bisleri has agreed to stop using the domain ‘bislerihimalayan.com’ It will continue to market water bottles that say ‘from the Himalayas’ as a descriptive mark in small font to denote the origin of the water. It has also agreed to inform its stockists about these arrangements. Come October, and a judgment will hopefully be doled out.

Representative Advocates:

– for Tatas: Fali S. Nariman

– for Bisleri: AS Chandhiok

Crunching Business Parameters:

The numbers game disclosing current and potential marketing trends and statistics are the driving force for either party to assert their dominance, while it is the onus of the courts to simultaneously ensure a level playing field.

Currently pegged at Rs. 1000 – crore, the Indian bottled water industry is projected to grow @ 40% to touch Rs. 5000 – crore by 2010. The ingoing fight over establishing and protecting the identity of the premium bottled water segment is mainly to create an entry into foreign markets and thus define a global presence. e.g. exploiting the US market which is touted to touch US$ 50 billion.

Viewpoint:

Any registered TradeMark is designed with an aspect to provide the basis, thrust, and most importantly, to impart a unique identity to a commodity (product/service). Infringement of any registered TradeMark is substantiated when it is proved beyond reasonable doubt that the purported infringer has/is caused/causing confusion about the identity of the product, which ought to be protected by the registered TradeMark. Also, an infringement hints at the strength of the registered TradeMark in the market vis-à-vis its identification of the product and seemingly entices potential copiers to piggy-back on an already paved way of the ‘recognised’ commodity. An efficient judicial system enabled by strong laws and defined precedents need to be in place to thwart such ‘piggy-backing’ attempts.

A further objection could be raised wherein, the very identity of the product is threatened i.e. whether a mark/word(s) ought to be the subject matter in the first pace.

Apropos the bottled water industry, indicative graphs [1] clearly point out the increasing demand in a developing nation like India.

Primarily, for this reason, the cross-tracking attempts and attempts to create well-defined, non-confusing niches within the juxtaposed players of the same market, a non-generic identity mark is of paramount importance.

While it remains clear that ‘Himalaya’ is a generic name and a geographical location (and hence, not a subject matter of a TradeMark registration), it remains to be seen if its derivative factions such as ‘Himalayan’ or the like withstand the turbulence caused in respect of this case, and attract favourable judgment, thereto, thus egging other players to register such TradeMarks, and its plausible complications arising out of methods of distinction of such distinctive marks.

Referred

https://www.tadalive.com/blog/5592/certificationstimes/
http://jobhop.co.uk/blog/174142
https://www.amilova.com/en/members/161555/Certifications%20Times/
https://macro.market/company/certifications-times
https://www.mioola.com/certificationstimes/

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