Financial Times

David vs Goliath court battle
My Cola triumphs over Coca Cola
The Sunday Times FT exclusively reported My Cola's entry into the market in its April 11 issue. That story and picture was one of the productions in the court case.
By Quintus Perera
The "My Cola" beverage company, a small firm in Sri Lanka, won a major legal battle in the Commercial High Court on Thursday versus the giant Coca Cola International USA, makers of globally famed "Coca Cola" in an issue over the use of similar bottles

The court refused to issue an interim injunction sought by the multinational and its local unit Coca-Cola Beverages Sri Lanka (Pvt) Ltd against Pet Packaging (Pvt) Ltd makers of My Cola, and also said the defendant was entitled to costs. The enjoining order, in existence barring Pet from producing certain bottles, was thus dissolved.

Judge K.T Chitrasiri, announcing his decision in the eight-month long case, upheld the contention of Pet Packaging that the plaintiff, Coca-Cola suppressed important material facts from court pertinent to the issues raised in this matter.

"…it seems to me that it is a gross suppression of facts and certainly this court should consider it as a serious suppression of facts on the part of the plaintiffs. Our courts have continuously held that, suppression of facts alone is sufficient to refuse an interim injunction. Therefore it is incumbent on this court to consider the suppression of the above facts by the plaintiffs and to apply the law accordingly," the judge said.

Coca-Cola in April this year sought an interim injunction restraining the My-Cola company from using contoured bottles identical and/or similar to the contoured bottles used by Coca-Cola. It opposed (a) using contoured bottles identical and/or similar to the contoured bottles used by the makers of Coca-Cola specifically for using them for packaging 1.5 litre bottles, (b) using labels, advertising and promotional material similar to the marks, labels and advertising material used by the 'Coca-Cola' brand and (c) pasting 'My Cola' stickers over the 'Coca-Cola' trade mark/name in Coca-Cola display racks.

"I admitted that My-Cola and Coca-Cola trademarks could co-exist in the market place without any confusion being caused in the mind of the consumer. The word ‘Cola’ being a generic name, no party is entitled to have exclusive rights over the word ‘Cola’,” the judgement said.

Justice Chitrasiri pointed out that the two 1.5 litre bottles of both parties when compared showed many differences and were not identical or similar to the naked eye.

These many differences could be identified by an ordinary customer. "Therefore it is difficult to decide that the consumers would get confused by the get-up of My-Cola as that of Coca-Cola."

In comparing the two labels and the other advertising materials of My Cola and Coca-Cola , the judge indicated that " The plaintiff's trade mark "Coca Cola" is printed on the labels in a unique way. As it is an internationally famous mark, the font used in the word "Coca Cola" and also the way it is used is very well known to the consumer. It has become an eye-catching feature in the labels and also in the promotional materials of the plaintiffs.

Therefore when a consumer sees even a slightly different mark to the plaintiff's mark, the consumer recognizes the difference at once. As a result, even if there are slight differences to the plaintiff's labels and promotional materials in a label or in any other advertising material of a third party, the consumer would be able to identify the origin of the product easily."

The judge indicated that he did agree with the contention of Pet packaging that the colour maroon is used in labels and in other materials to market cola beverages the colour maroon appears for a functional purpose as it denotes the cola fruit

Thus it was decided "In the circumstances, colours cannot be made use of to identify the origin of the goods when the colours are considered as functional. This is intended to ensure fair competition amongst the traders. Therefore in the instant case the colour maroon used in the labels cannot be reserved for the exclusive use of the plaintiffs but it should be available for the use of the defendant and also for the other existing competitors, as it is used to identify the Cola products."

Jubilant over the decision, Sarma Mahalingam, Director, Pet Packaging Co (Pvt) Ltd makers of My Cola told The Sunday Times FT that they have commenced packaging My Cola beverage in the original bottles with the original labels as allowed by court soon after the judgement in their favour was made.

Senior Counsel Romesh de Silva with Harsha Amarasekera instructed by Sugath Perera Associates appeared for the Coca Cola Co while Senior Counsel S L Gunasekera with Dinal Phillips and Sa'adi Wadood instructed by Varners appeared for the Pet Packaging Co.

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