Tag Archives: Supreme Court

DGCA tells Supreme Court, left to Airlines how much Liquor to Serve

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The horrific incident of an inebriated passenger urinating on a fellow passenger on an Air India flight from New York to Delhi in late 2022 has become a reference point on passenger behaviour on flights. The drunken passenger – Shankar Mishra – was arrested after enormous media pressure, and the airline was pulled up by the Directorate General of Civil Aviation (DGCA).

Later, the 72-year-old woman passenger filed a petition in the Supreme Court, demanding urgent formulation of standard operating procedures (SOPs) to deal with intoxicated passengers. The DGCA in an affidavit filed before the Supreme Court said it was left to the discretion of every airline, as per Clause 4.3 of Civil Aviation Requirements (CAR), to formulate a policy so as to not leave passengers inebriated which increase the risk of them committing nuisance.

The DGCA said that Civil Aviation Requirements (CAR) are in place to deal with “handling of unruly passengers”. In her petition, the woman had requested SC to direct DGCA to frame a ‘zero tolerance’ SOP and rules to strictly deal with onboard unruly/disruptive behaviour and its implementation in letter and spirit by all airlines.

She pointed out that the Air India crew faltered in handling the sensitive issue in a very casual manner causing immense damage to her dignity. Stating that the airline first served excess liquor to the accused co-passenger and then forced her to enter into a settlement with him while failing in their duty to report the incident to the police, she called upon the DGCA to consider “drunkenness” as unruly or disruptive behaviour on an aircraft.

Air India had a policy on serving liquor on international flights as per which a passenger can’t be served more than two drinks on a flight that is less than four hours. However, the amount of alcohol served differs from business, first and economy classes with the last mentioned just getting one drink.  

Air India’s apology for not handling the incident properly and for being insensitive to the woman passenger, came a bit late and with the Air India Chief Executive Officer, Campbell Wilson adding that it would review the ‘policy on service of alcohol in flight’.

Not a one-off incident

This was not just one incident. On December 6, 2022 on a Paris-New Delhi flight, a drunk passenger was caught smoking in the lavatory, ignoring the crew’s admonition. And another passenger allegedly relieved himself on a vacant seat and blanket of a fellow female passenger when she had gone to the lavatory. Disgusting, to say the least.

IATA says offenses often go unpunished

The International Air Transport Association (IATA) has said that there is growing concern from airlines, governments and passengers at the increasing frequency and severity of these incidents that involve violence against crew and other passengers, harassment and failure to comply with safety and public health instructions.

27% alcohol use, 24% smoking violations

IATA said that incidents involving unruly behaviour in airlines are on the rise. Alcohol use is involved in 27% of these cases while 24% cases related to noncompliance with smoking regulations. IATA said the solution seems obvious. “If too many airline passengers are abusing alcohol and acting violently, airlines can limit alcohol sale to solve the problem. However, airlines are looking for a regulatory fix, showing their reluctance to lose the alcohol sales profit despite the harm alcohol is causing.

In the US, federal law prohibits flight crews from allowing “obviously intoxicated passengers” to board aircraft, and it doesn’t allow flight attendants to serve alcohol to anyone who appear intoxicated. 

IATA core principles on dealing with unruly passengers

In June 2014, at the 70th annual general meeting of IATA, the industry unanimously adopted a set of core principles for dealing with the issue of unruly passenger behaviour.  To support these principles, IATA has published a document “Even safer and more enjoyable air travel for all – A strategy for reducing the problem of unruly and disruptive passenger incidents”, that uses examples of good practice to illustrate the practical steps that must be taken to significantly reduce the problem of unruly and disruptive passengers including urging governments to:

  • Communicate the types of prohibited conduct onboard aircraft and the legal and other consequences of such conduct as per the Standards and Recommended Practices in Annex 9 – Facilitation of the Chicago Convention
  • To ratify MP14, thereby removing barriers to prosecution/enforcement action
  • To review the types of enforcement measures that are in place, consistent with the severity of the incident, including civil and administrative penalties such as fines that can be issued to ensure there are consequences to such behaviour as per ICAO Doc.10117
  • To support the work of airlines and other industry stakeholders to prevent unruly and disruptive passenger incidents
  • To assist member airlines in prevention and management of unruly passenger incidents, IATA has developed extensive guidance and training, for example in de-escalation techniques and the responsible service of alcohol during flights

No liquor on domestic Indian flights

On Indian domestic flights, no alcohol is served, but on international flights airlines do. This rule was implemented in 1994 after the Ministry of Civil Aviation received several complaints of flyers getting inebriated and misbehaving with the airline staff and other passengers.

Many airlines don’t serve alcohol

These are some of the airlines which do not serve liquor on flights – Air Arabia; Egyptair; Iran Air; Iraqi Airways, Kuwait Airways; Pakistan International Airlines; Royal Brunei Airlines; and Saudia. Not all Middle Eastern airlines prohibit sale and consumption and the best example of service is Emirates Airline which has a lounge on board with the most exotic cocktails to be had at 40,000 feet.

One black sheep such as Shankar Mishra can mess up the entire inflight experience. Stricter punishments may be deterrent. Nevertheless, it is for the cabin crew to be trained, first in serving alcohol to passengers and secondly on dealing with unruly passengers, irrespective of whether the passenger is inebriated or not. 

Pilot too drunk, suspended

While these incidents are passenger related, recently Air India took action against a female pilot by suspending her for three months after she failed the pre-flight breath analyser test. The pilot, serving as a first officer on a Boeing 787 aircraft, reportedly did not pass the test just before she was scheduled to operate a flight from Delhi to Hyderabad.

The DGCA has laid down norms for pilots and other crew members, all of them are mandated to undergo pre-flight breath analyser examinations prior to their first departure during a flight duty period. If any crew member tests positive, strict penalties are imposed. In the case of a first-time failure, suspension from flying duties for a duration of three months is the prescribed punishment.

Last year, DGCA revised the norms regarding the medical examination of aircraft personnel with regards to alcohol consumption. The regulations prohibit the consumption of any substance containing alcohol, including mouthwash or tooth gel, which could potentially result in a positive breath analyser test. “No crew member shall consume any drug/formulation or use any substance such as mouthwash/ tooth gel or any such product which has alcoholic content. This may result into positive breath analyser test. Any crew member who is undergoing such medication shall consult the company doctor before undertaking flying assignment.”  Additionally, crew members undergoing medication are advised to consult the company doctor before undertaking any flying duties.

– R. Chandrakanth

Supreme Court observation on Blenders Pride vs London Pride Whisky on Trademark Infringement

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The Apex Court in an observation on January 22 has asked respondents Indore-based JK Enterprises if they are willing to change the trade dress of the brand London Pride whisky in a trademark infringement case filed by Pernod Ricard India Pvt Ltd., makers of Blenders Pride and Imperial Blue whiskies. A bench of the Chief Justice of India, D.Y. Chandrachud, Justices J.B. Pardiwala and Manoj Misra adjourned the case by two weeks while asking the respondents – JK Enterprises to get instructions in this regard.

The Supreme Court in two recent hearings saw the petitioners – Pernod Ricard India Pvt Ltd and ANR – presenting their case by bringing bottles of whisky of the two contending brands to highlight trademark infringement. Senior Advocate Mukul Rohatgi representing the petitioners had taken permission to display the bottles in the Court to point out the similarities in the name ‘Pride’, trade dress and the bottle shape. The trade dress between London Pride and Pernod Ricard’s another brand ‘Imperial Blue’ has similarities.

Pernod Ricard said, “The respondent has copied the trademark Blender Pride by adoption and use of London Pride and further copied the colour combination, get-up and trade dress of Imperial Blue of petitioners including use of bottles with embossing of Seagram, the house mark of the petitioner.”

Pride is a generic word, CJI

Presenting the bottles to the Court, advocate Rohatgi said, “In this case the name is not the copy. In this case the trade dress, and even the bottle is identical. And something worse, bottle is absolutely identical.” Rohtagi showed “London Pride” to the bench, however, the bench said the bottle had a different shape. Chief Justice Chandrachud said that the term “Pride” is a generic word. Rohatgi went on to argue on the ‘deceptive similarity’ by recalling similarities in name such as Royal Stag-Indian Stag, Blenders Pride-Casino Pride, Amritdhara- Lakshmandhara, Imperial Blue-Imperial Gold, Golden Deer-Double Deer, Johnny Walker-Captain Walker, Lal Kila-Hara Kila, Field Marshal-Sona Marshal, Officer’s Choice-Green Choice etc. It may be mentioned here that the Supreme Court had in September last year refused to grant interim relief to Pernod Ricard India in its trademark infringement plea against United Spirits which manufactures whisky under the name ‘Royal Challengers American Pride’.

D.Y. Chandrachud, Chief Justice of India

Misuse of embossed bottles

Rohatgi further pointed out how the respondent had misused ‘Seagram’ embossed on the bottles. “Seagram is also mine, which they are using. They are either getting manufactured from somewhere else or getting from Kabadi. Because they can’t get Seagram.” The CJI then asked the petitioners to point out where the bottle was embossed with the word ‘Seagram’. The bench in lighter vein asked the petitioners not to hand over the bottle but to indicate from their place where the embossed word was.

The CJI on seeing the bottles remarked “Why have you (London Pride makers) but adopted the same trade dress and colour and all? Get instructions on whether you will change. We will keep it on Friday week. Ask yourselves, why you suddenly chose to use ‘Pride’?”

Price difference pointed out by respondents

The apex court witnessed interesting exchanges between the two parties. When Senior Advocate Dr. S. Muralidhar, appearing for the respondent, said that affluent customers can easily discern between London Pride and Blenders Pride, the latter being a premium product. Countering this argument, Abhimanyu Bhandari, representing JK Enterprises, submitted that London pride was much cheaper. He argued that while Blenders Pride was priced around ₹1,650, London Pride cost about ₹600. Therefore, someone willing to buy a Blenders Pride would never buy a bottle of London Pride, he contended.

The apex court bench pointed out that the question whether ‘London Pride’ name is deceptively similar to ‘Blenders Pride’ requires arguments from both sides. The petitioners had alleged that the Indore-firm was hurting Pernod’s ₹4,400 crore annual turnover.

The Chief Justice of India observed there was no absolute similarity with regard to the names of Blenders Pride and London Pride. “You used the word ‘Blender’, they use the word ‘London’, and the bottles are also different. They are also saying 42 other manufacturers also use the word. Blender and London are two completely different words.” The CJI asked an open-ended question “Will a person walking into a store to buy Blenders Pride only say give me ‘Pride’ or ‘Blenders’?”

Appearing for Pernod Ricard, Senior Advocate Dr. Abhishek Manu Singhvi argued that the makers of London Pride were riding piggy-back on Blenders Pride. Pernod Ricard was also represented by advocates Hemant Singh, Mamta Jha, Mohit D Ram, Rajul Shrivastav, Monisha Handa, Sambhav Jain, Reha Mohan and Anubhav Sharma.

Appeal against Madhya Pradesh High Court order

Pernod Ricard India had approached the Supreme Court following the order of the Madhya Pradesh High Court of November 3, 2023, which had rejected their petition to stop the sale of London Pride whisky on grounds of trademark infringement. The Madhya Pradesh High Court had found no visual, phonetic or structural similarities between the two whisky brands.

The High Court in its judgment had held “…The first word of the trade mark of plaintiffs is ‘Blenders’ whereas that of the defendant is ‘London’. There is absolutely no similarity in them leave aside any dissimilarity. ‘Pride’ being a generic, common place and laudatory expression in ‘Blenders Pride’ mark, the common man would certainly treat ‘Blenders’ part of plaintiff’s mark as the dominant part. The question of comparison of the words ‘Imperial Blue’ and ‘London Pride’ does not even arise…”.

Court contends that consumers can distinguish between two brands

The High Court went on to conclude that “It can be safely presumed with a sufficient deal of certainty that the consumers of such products would be mostly literate and having reasonable intelligence to distinguish between the bottles of Blenders Pride/Imperial Blue and that of London Pride. Even if they are of average intelligence with imperfect recollection, they would be able to differentiate between the rival competing brands… Liquor consumers of scotch whisky are educated and discerning type. They are literate persons belonging to the affluent class of society.” During the conclusion of the day’s hearing in the Supreme Court, the CJI remarked in lighter vein that Dr. Muralidhar had spoken with “much authority” on the whisky products, to which the latter replied “I am the only sober one here.”

– R. Chandrakanth