In a significant judgement on comparative ad war between the soft drink majors, the Delhi high court on Monday restrained Coca-Cola from airing its Thums Up and Sprite commercials featuring film actor Salman Khan holding that the promos were intended to depict Pepsi as an inferior drink.
However, a division Bench comprising Justice Usha Mehra and Justice O P Dwivedi held that the use of rival's trade mark by Coke in its campaign did not amount to trade mark and copyright infringement.
Allowing partially the appeal by Pepsi against the Single Bench judgement, the court barred Coca-Cola from using the Thums Up and Sprite's roller coaster commercial in which the Bollywood actor was shown saying that Pepsi was a drink for children.
Earlier, last year, the Single Judge had dismissed the petition filed by Pepsi in March 2001 seeking to restrain its rival from airing the comparative advertisement, which allegedly was intended to disparage Pepsi product.
Pepsi had objected to the use of slogan Yeh Dil Mange No More and baccho wali drink in the Coke's advertisement for its two products contending that the phrase was deceptively similar to its copyrighted lyrics Yeh Dil Mange More.
Senior advocate Iqbal Chagla, appearing for Coca-Cola contended that the two commercials were neither disparaging nor the trademark of Pepsi was used in the course of trade.
On the comparative advertisement of Pepsi and Thums Up, the Bench held that by calling the cola drink of Pepsi yeah baccho wali hei, baccho ko pasand ayagi, "wrong choice baby", Coca-Cola depicted the commercial in a "derogatory" manner.
"It cannot be called puffing up," the court said, adding, "The manner in which this message is conveyed clearly shows disparagement of appellants (Pepsi's) product."
However, the court declined to accept Pepsi's contention that use of its global device with identical colour combination of red and blue in the advertisement by Coke amounts to trademark and copyright infringement.
