Amul and Cadila's sugar-free affairs
Our Bureau
Date of posting: 03-06-07
During a hearing last week in Delhi High Court, Gujarat Co-operative Milk Marketing Federation Ltd (GCMMFL), the manufacturer of 'Amul' products, today defended the use of prefix 'Sugar Free' with its soon-to-be-launched ice-cream "Sugar Free Dessert". Amul's counsel argued that 'Sugar Free' was not a new or distinctive term coined by Cadila but was an ordinary and commonly used one. He further said that there were many products which depict "sugar-free" as prefix or suffix to denote that they did not have sugar. The Delhi High Court on April 3rd had restrained Gujarat Co-operative Milk Marketing Federation Ltd, the manufacturer of famous 'Amul' products, from selling and marketing any items under Cadila's trademark "Sugar Free". Explaining the interim injunction, Justice G S Sistani argued that in case the injunction would not be granted, Cadila would suffer irreparable losses. Pratiba Singh, Cadila’s advocate, said that while the company had no issues with any company marketing sugar-free products, they objected to the use of the term “Sugar Free” by Amul. She claimed that no other product used “Sugar Free” in its brand name. She pointed out that Amul’s packaging laid emphasis on the term “Sugar Free” and claimed it was attempting to cash in on Zydus’s brand equity. Cadila Healthcare Ltd, producer of artificial sweeteners since 1988 under the brand name "Sugar Free", is the leader in the market for sweeteners with 74 per cent market share. Cadila had already applied for a trademark for the term “Sugar Free” but not yet received it. Trademark laws all over the world normally do not allow the use of “descriptive” terms. Therefore, an apple can never get the brand "apple", because it is a description. But to a computer, the brand "Apple" can be and has been granted. Ordinarily, at first glance, “Sugar Free” would fall within that category of a description. Amul had announced the creation of a range of sugar free, low fat probiotic desserts created for the health conscious in January.
Date of posting: 03-06-07
During a hearing last week in Delhi High Court, Gujarat Co-operative Milk Marketing Federation Ltd (GCMMFL), the manufacturer of 'Amul' products, today defended the use of prefix 'Sugar Free' with its soon-to-be-launched ice-cream "Sugar Free Dessert". Amul's counsel argued that 'Sugar Free' was not a new or distinctive term coined by Cadila but was an ordinary and commonly used one. He further said that there were many products which depict "sugar-free" as prefix or suffix to denote that they did not have sugar. The Delhi High Court on April 3rd had restrained Gujarat Co-operative Milk Marketing Federation Ltd, the manufacturer of famous 'Amul' products, from selling and marketing any items under Cadila's trademark "Sugar Free". Explaining the interim injunction, Justice G S Sistani argued that in case the injunction would not be granted, Cadila would suffer irreparable losses. Pratiba Singh, Cadila’s advocate, said that while the company had no issues with any company marketing sugar-free products, they objected to the use of the term “Sugar Free” by Amul. She claimed that no other product used “Sugar Free” in its brand name. She pointed out that Amul’s packaging laid emphasis on the term “Sugar Free” and claimed it was attempting to cash in on Zydus’s brand equity. Cadila Healthcare Ltd, producer of artificial sweeteners since 1988 under the brand name "Sugar Free", is the leader in the market for sweeteners with 74 per cent market share. Cadila had already applied for a trademark for the term “Sugar Free” but not yet received it. Trademark laws all over the world normally do not allow the use of “descriptive” terms. Therefore, an apple can never get the brand "apple", because it is a description. But to a computer, the brand "Apple" can be and has been granted. Ordinarily, at first glance, “Sugar Free” would fall within that category of a description. Amul had announced the creation of a range of sugar free, low fat probiotic desserts created for the health conscious in January.
Amul loses its sugar-free market
Rohan George
in an interim injunction on April 3, 2007, the Delhi High Court stayed the sale of Amul’s new sugar-free ice cream until May 3.This came in response to a case filed by Ahmedabad-based drug and health food company, Zydus Cadila Ltd, on April 2, 2007, claiming infringement of its trademark rights of the phrase “sugar-free” in Amul’s new product. Cadila also sought a compensation of Rs 25 lakh from Amul for causing damage to its reputation.The order, incidentally, was passed ex-parte, with only the counsel for Zydus Cadila present at the time of argument. In his order, justice G S Sistani said if the injunction were not granted, Zydus Cadila would suffer irreparable loss.Amul, the brand name of an Anand-based dairy co-operative in Gujarat managed by the Gujarat Co-operative Milk Marketing Federation Limited, had launched its Prolife Sugar Free probiotic wellness dessert on January 22, 2007. But Cadila filed a case claiming it has exclusive intellectual property rights to the phrase “sugar-free” since it has been manufacturing “Sugar Free” brand of aspartame-based artificial sweeteners since 1988.Pratiba Singh, Cadila’s advocate, said that while the company had no issues with any company marketing sugar-free products, they objected to the use of the term “Sugar Free” by Amul. She claimed that no other product used “Sugar Free” in its brand name. She pointed out that Amul’s packaging laid emphasis on the term “Sugar Free” and claimed it was attempting to cash in on Zydus’s brand equity.As yet Cadila has applied for a trademark for the term “Sugar Free” but not yet received it. Trademark law does not normally allow the use of “descriptive” or “generic” marks, which consist of common words used to describe the product like tasty. Ordinarily, “Sugar Free” would fall within that category but Pratiba Singh claims in many situations, a descriptive term may derive a secondary meaning, due to its repeated association with a specific product, as in the case of Cadila’s artificial sweeteners.However, legal experts have said the use of the term ‘Sugar Free’ by Cadila is not sufficient to give it a secondary meaning. The term must also be synonymous with the company or its product in the mind of the common man.Meanwhile, Amul’s chief general manager R S Sodhi refused to comment till he had seen the court’s order.
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Sugar Free Cannot be Used as a Trade Mark - Says Delhi High Court
Anand, Gujarat, India, Monday, November 05, 2007 -- (Business Wire India)
In a landmark judgement delivered by Hon’ble Justice G. S. Sistani of the High Court of Delhi, in a case filed by M/s Cadila Healthcare Ltd., Ahmedabad, against GCMMF, the marketers of Amul, has ruled that the descriptive words “Sugar Free” cannot be used as a trade mark and cannot be owned by any one.
The Hon’ble judge also ruled that M/s Cadila Healthcare cannot be allowed to arrogate its monopoly to use the expression “Sugar Free” since the said expression being inherently descriptive in nature has become a commonly used word in relation to foods and beverages. The hon’ble judge also observed that since Sugar Free is not a coined word nor it is an unusal combination of words, and therefore is a commonly used expression in written as well as spoken English and hence cannot be monopolised for use by any trade.
The judgment also makes it clear that any descriptive word cannot be monopolised as having secondary meaning unless that is the only manner that product can be described and no other.
Hon’ble Justice G. S. Sistani also made it clear that any popular expression in line of particular category cannot be owned by any one and it will not be equitable to allow a blanket injunction for use of popular expression by one party, so long as it is used as a descriptive epithet and not as trade mark. The Justice also remarked that while using these words by way of descriptive expression one should be prepared to take the risk of widespread use of similar trade mark by fellow traders.
This important judgement would therefore restrict monopolistic use of popular expressions especially with descriptive nature by few traders. This kind of descriptive words therefore would be open to use by anyone in trade and business. Amul’s Sugar Free Ice-cream against which Cadila Healthcare had filed the injunction, would now be available and publicly advertised.
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