The Test of an Unwary Consumer with Imperfect Recollection- ‘Carlsberg’ Trademark Dispute

The Plaintiff in the matter of Carlsberg Breweries A/S Vs. Tensberg Breweries Industries Pvt. Ltd.& Ors. [CS (COMM) 646/2022] sought an ad-interim injunction against the Defendant, claiming it to having adopted a deceptively similar mark- ‘Tensberg‘. While the Defendant accused Carlsberg of misrepresentation and argued that they had been marketing their products since 2018, so the Plaintiff had prior knowledge of the same, and further, there were several other marks in the market with the suffix “berg”. Thus, with different prefixes, the marks could not be considered to be deceptively similar.​

The Hon’ble Delhi High Court noted that prima facie, marks of both the parties appeared to be similar, both visually and phonetically. Further, there was no doubt regarding the Plaintiff being a prior adopter of its mark and a registered proprietor of the mark “Carlsberg”, while the Defendant had no registration for its alleged mark ‘Tensberg‘.​

The Court held that delay in prosecution of a claim of infringement, cannot be a ground to allow such infringement to continue. The Court further opined that the use of not only a similar mark, but also a similar get-up (Trade dress) of the product, which included the shape of the bottle, a similar crown mark, and the color combinations of the marks on both – the beer bottle and can, indicated the intent of the Defendants to ride upon the reputation and goodwill of the Plaintiff company, thereby, causing confusion and deception in the minds of unwary consumers. ​

Thus, the Court in this case while granting injunction, applied the test of an unwary consumer with imperfect recollection, and remarked that beer bottles and cans are bought in a casual manner, and not with minute scrutiny. The two marks and their trade dress, prima facie appear to be deceptively similar and are likely to deceive and cause confusion. ​