In re Aditya Birla Retail Limited (AAR Maharashtra)
Name Aditya Birla is a benchmark in itself and is associated with a certain trust and quality. Now, we see the definition of ‘brand name’ includes a name or a mark. This concept of ‘mark’ stems from the Trade Marks Act, 1999 where we have the following definition –
(m) “mark” includes a device, brand. heading. label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof:
It can be seen that a ‘mark’ includes a ‘name’. Further, it also includes a combination of colours. In the present case, we see that the packaging for both the Streams would be using a combination of colours from the logo of the Aditya Birla Group. And we see that the name Aditya Birla also appears on the package. The name “Aditya Birla” is more than suffiecnt to establish an identity with the goods. The Hon. Supreme Court decision in CCE v. Grasim Industries Ltd. [CCE v. Grasim industries Ltd., (2005) 4 SCC 194] has observed that the words `any writing’ in the definition of ‘brand name’ are wide enough to include the name of a company. Besides the goods under both the Streams would be available in the More Stores. It was confirmed during the hearing that these goods are not available in any other stores except the More Stores. It has been argued that along with these products, the More Stores also have products of other manufacturers, too. We find that this fact in fact helps to distinctly identify those products as being the More products which aren’t available elsewhere. On this issue of availability of the products of the applicant only at the More Stores, it would be relevant to refer to the decision of the Hon. Supreme Court in CCE v. Australian Foods India (P) Ltd., (2013) 12 5CC 468: (2014) 1 SCC (Civ) 701: 2013 SCC OnLine SC 58 at page 474.
As observed in the above case, the observation as to whether the brand name appears in entirety or in parts or does not appear at all cannot be the chief criterion; primary focus has to be on whether all indication of a
connection is conveyed in the course of trade between such specified goods and some person using the mark. We have seen here that the impugned goods are available only at the More Stores. We have seen from the website of the applicant that the applicant ventured into food and grocery retail sectors under the brand ‘more’ with two formats — Supermarkets and Hypermarkets. In CCE v. Stangen Immuno Diagnostics, (2015) 11 SCC 761 : 2015, it has been observed that –
“The central idea contained in the definition is that the mark is used with the purpose to show connection of the said goods with some person who is using the name or mark. Therefore, in order to qualify as “brand name” or “trade name” it has to be established that such a mark, symbol, design or name, etc. has acquired the reputation of the nature that one is able to associate the said mark, etc. with the manufacturer.”
In the present case, the applicant also has a family of customers purchasing from the More Stores and associating the Brand with some quality standards. Thus, the customers are aware of the More brand as well as the products of the More brand which are available in the More Stores alongwith products of other manufacturers. Therefore, a new strategy, all of a sudden, in view of the provisions of the GST Act, to discontinue the earlier practice of mentioning the Aditya Birla logo or the More brand would not mean that the customers would have any difficulty in associating or identifying the products with the More brand.
Therefore, the entries which are claimed applicable would not be applicable as –
a) Indisputably, the applicant is supplying the goods in a unit container.
b) Supply of the goods at the “More Stores” would amount to the goods being supplied by a particular supplier and under a brand name.
In view of above, we hold that when the position is as at above (a) and (b), the supplies of the products under Stream I or Stream 2 would not fit into the scheme of the entries requiring the following underlined condition –
XXXX other than those put up in unit container and. ‑
(a) bearing a registered brand name; or
(b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily, subject to the conditions as in the ANNEXURE II
(ii) (a) The phrase “brand name” means brand name or trade name, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.
(b) The phrase “registered brand name” means. ‑
(A) a brand registered as on or after the 15th May 2017 under the Trade Marks Act, 1999 irrespective of whether or not the brand is subsequently deregistered;
(B) a brand registered as on or after the 15th May201 7 under the Copyright Act, 1957(14 of 1957);
(C) a brand registered as on or after the 15th May2017 under any law for the time being in force in any other country
We find that the applicant has argued that the mention of the name of the applicant is with regard to the mandatory requirements of some other statutes and therefore the goods being supplied by the applicant under Stream 1 and 2 would not be considered as branded. However it is clearly visible that the applicant though is proposing to make changes as per the Stream 1 and 2 mentioned above, it is equally clear that the goods are being supplied through the “More Stores” which is a registered brand as on the 15th May 2017 irrespective of whether or not the brand would be subsequently deregistered and further, the name “Aditya Birla Retail limited” also appears on the unit container. Therefore, the applicant would not be eligible for the benefit under ,the entries requiring the fulfillment of the above conditions as the Hon. Supreme Court has observed that whether the brand name appears or does not appear at all cannot be the chief criterion; primary focus has to he on whether an indication of a connection is conveyed in the course of trade between such specified goods and some person using the mark. And we have shown above that people are aware of the fact that More brand products are available at the More Stores alongwith the products of other manufacturers or brands. There is an identity established with the products which are available at no place other than the More Stores. We have come to the conclusion which is fortified by decisions of the Hon. Courts that the products supplied under Stream 1 and Stream 2 would amount to supply under a brand name on the basis of all the above factors and the attending circumstances.
The question in respect of Stream 3 needs details and facts as are submitted in respect of the Streams 1 and 2. The question cannot be raised in isolation and with an incomplete set of facts. Further, from the sample packaging pictures submitted, the question is found to be linked to the Streams 1 and 2. The words ‘Value’, ‘Choice’ and Superior’ would be in addition to the facts as found in the Streams 1 and 2. In view thereof, having answered the questions in respect of the Streams 1 and 2, there arises no occasion to visit the question in respect of Stream 3. The applicant can refer to the answers in respect of the Streams 1 and 2.
For reasons as discussed in the body of the order, the questions are answered thus –
Q.1 Whether the subject goods, proposed to he sold under Stream 1 (refer Annexure I), where the package of the subject goods would merely have a declaration mentioning the name and registered address of the Applicant as the manufacturer, as per the statutory requirement under Subject Statutory Provisions, can be considered as ‘not hearing a brand name, and, accordingly eligible for exemption from GST in terms of relevant entries to Notification No. 2/2017 Central tax (Rate) dated 28th June 2017 (‘CGST Notification’), and, the corresponding entries under Notification No. 2/2017-Integrated tax (Rate) dated 28th June 2017 (‘IGST Notification’) and Notification No. 2/2017-State Tax (Rate) dated 29th June 2017) ]collectively referred to as ‘the Exemption Notifications’]?
A.1 Answered in the negative.
Q.2 Whether the subject goods proposed to he sold under Stream 2 (refer Annexure I), where the package of the subject goods would have a declaration mentioning the name and registered address of the manufacturer as per the statutory requirement under the Subject Statutory Provisions as also the declaration ‘Marketed by- Aditya Birla Retail Limited’ can he considered as ‘not bearing a brand name’, and, accordingly eligible for exemption in terms of relevant entries to the Exemption Notifications?
A.2 Answered in the negative.
Q.3 Whether the declarations made on the package, by inter alia using common/generic terms viz. ‘Value’, ‘Daily’, `Superior’ and ‘Choice’, for the sole purpose of indicating the quality of the product so as to enable the customers to identify and buy products based on their requirements, budget and preferences can he construed to he a ‘brand name’ for the purpose of the Exemption Notifications?
A.3 The question cannot he raised in isolation. Refer to the answers in respect of the Streams I and 2.