Ceylon Brewery’s claim for exclusive use of ‘Lion/Lion head’ dismissed

The Commercial High Court delivered a judgment in one of the most fiercely contested legal battles for a ‘Lion’ trademark on the 7th July 2017, where the plaintiff, Ceylon Brewery Limited’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 Limited against Heineken Asia Pacific (Pvt) Ltd and Asia Pacific Brewery Limited in June 2007, which in respect of the lion mark used for Barons Beer. Ceylon Brewery claimed that this was an infringement Ceylon Brewery’s trademark. The cross claim sought by Heineken Asia Pacific (Pvt) Ltd & Asia Pacific Brewery Limited 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/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 Largermark’ which had a device of a lion, specifically to deceive the general public. The defendants, Heineken Asia Pacificand 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 and the defendants were represented by Dr. Harsha Cabral PC who apperared with Buddhike Illangatillake and Shivaan Kanag-Isvaran, attorneys at law on the instructions of Julius & Creasy.