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Thursday Dec 12, 2024
Wednesday, 2 August 2017 00:00 - - {{hitsCtrl.values.hits}}
The Commercial High Court has entered judgment in one of the most fiercely-contested legal battles for a ‘Lion’ Trade Mark on 7 July, where the Plaintiff, Ceylon Brewery Plc’s claim for the exclusive use of ‘lion/lion head’ and the word ‘lion’ within the territory of Sri Lanka was dismissed.
The action was instituted by Ceylon Brewery Plc against Heineken Asia Pacific Ltd and Asia Pacific Brewery Ltd., in June 2007, which in respect of the Lion mark used for Barons Beer.
Ceylon Brewery claimed that there was an infringement Ceylon Brewery’s trademarks. The cross claim sought by Heineken Asia Pacific Ltd. and Asia Pacific Brewery Ltd. to remove certain Lion Trademarks owned by Ceylon Brewery from the Trademark register was also refused.
Ceylon Brewery instituted legal proceedings in June 2007 nearly 10 years ago on the basis that Ceylon Brewery had an exclusive right to use the pictorial representation of a ‘Lion/Lion head’ and also the word ‘Lion’ within the territory of Sri Lanka. Though Ceylon Brewery managed to obtain an ex parte enjoining order against Heineken Asia Pacific and Asia Pacific Brewery, the Commercial High Court thereafter refused the interim injunction. This order was appealed by Ceylon Brewery but was refused by the Supreme Court.
Ceylon Brewery’s position in the Plaint was that Ceylon Brewery was the owner of several registered trademarks and had over a period of time been using the Trademarks depicting through the device of a Lion head or the word ‘Lion’ in respect of beer in Sri Lanka. On that basis the Plaintiff claimed an exclusive right of the use of a Lion and the Lion head and also the word ‘Lion’ against any other.
On this basis the Plaintiff’s position was that Heineken Asia Pacific and Asia Pacific Brewery had calculatedly sought to use a Lion, which so nearly resembles the Plaintiff’s Lion Larger mark which had a device of a Lion, specifically to deceive the general public.
The Defendants, Heineken Asia Pacific and Asia Pacific Brewery inter alia in their Answer took up the position that the ‘Lion’ registered mark in Sri Lanka was only registered for beer and that they cannot claim an exclusive right to the device of a ‘Lion’.
The Defendants also took up the position that Ceylon Brewery had abandoned some of its trademarks including a Standing Lion device mark and therefore the Defendants are entitled to get those marks removed from the Trademark register. Furthermore, the Defendants through their amended Answer also took up the position that the products of the Defendant’s Baron lager and Baron strong beer had get ups (packaging) which were significantly different from the Plaintiff’s beer label and therefore there is no possibility in misleading the public or causing confusion.
Furthermore, the Defendants also took up the position that the word ‘Lion’ is not used in the Baron’s beer products. After a period of nearly 10 years of litigation, the learned Judge who presided in the Commercial High Court, presently presiding in the Court of Appeal, Gamini Amarasekara through a comprehensive and considerate judgment considering the several legal issues framed, the several witnesses and their evidences led, proceeded to dismiss the Plaint with costs and refused also to grant the cross claim sought by the Defendants in respect of removing certain lion trademarks of the Ceylon Brewery.
The Plaintiff was represented in Court by President’s Counsel K. Kanag-Isvaran and Avindra Rodrigo, Attorney-at-Law on the instructions of FJ & G de Saram, Attorneys-at-Law and the Defendants were represented by President’s Counsel Dr. Harsha Cabral who appeared with Buddhike Illangatillake and Shivaan Kanag-Isvaran, Attorneys at Law on the instructions of Julius & Creasy, Attorneys-at-Law.
