Firm loses ‘Pepsi’ war

A company has been ordered by the Waigani National Court to dispose of all imported cans of Pepsi it has imported that had the trademark registration similar to that of registered distributor Paradise Foods Ltd.
Judge Derek Hartshorn yesterday made the orders after a company called Paradise Supermarket Limited (PSL) was selling imported cans of Pepsi with the name “Paradise Beverages” on a blue background with a red bird of paradise entwining the words.
The word composite and the logo are registered to Paradise Foods Limited (PFL) under the trademark registration number TM 70107. The goods for which TM 70107 is registered are beers, mineral and aerated waters and other non-alcoholic drinks, fruit drinks, fruit juices, and other components used in the preparation of beverages.
The court heard that PSL had been importing cans of Pepsi into PNG with “Imported & distributed in PNG by Paradise Beverages” without the permission of PLF, and had been distributing the can drinks to its customers.
The court was told that PFL submitted that PSL used the mark “Paradise Beverages” in the course of trade, used that mark in relation to goods in respect of PFL’s trademark registered and used without its permission.
Further, PFL submitted that the circumstances of the use by PSL were irrelevant, since PSL had previously broken the law/right by using PFL’s trademark in 2016.
PSL submits that TM 70107 was not sufficiently wide to extend to the plain text words “Paradise Beverages”. “Paradise Beverages” as used on the subjected cans were not substantially identical or deceptively similar to TM 70107 and PSL had engaged in the parallel importation of a product that was genuine and lawfully available in markets in Malaysia and Singapore.