2018 (8) TMI 1072 - AAAR - GST

Manufacturer's name on packaging makes goods branded despite removing logos, GST exemption denied

In Re: Aditya Birla Retail Ltd.,

The AAAR Maharashtra ruled that goods sold in More stores bearing the manufacturer's name 'Aditya Birla Retail Limited' constitute branded goods, even ... Branding of goods - Whether mention of name of the Appellant on the goods, as required by FSSAI regulations and Legal Metrology Rules, amounts to brand name or not? - Whether use of general words like ‘Choice’, ‘Value’ or ‘Superior’ on the goods to be sold in ‘More stores would render the said goods as branded or not? - N/N. 02/2017-Central Tax (Rate) dt. 28 June 2017. Held that:- The practice of branding is thought to have begun with the ancient Egyptians who were known to have engaged in livestock branding as early as 2700 BCE. Branding was used to differentiate one person’s cattle from another’s by means of a distinctive symbol burned into the animal’s skin with a hot branding iron. If a person stole any of the cattle, anyone else who saw the symbol could deduce the actual owner. Over time, the practice of branding objects extended to a broader range of packaging and goods offered for sale. In modern times the term has been extended to mean a strategic personality for a product or company, so that ‘brand’ now suggests the values and promises that a consumer may perceive and buy into - Branding is a set of marketing and communication methods that help to distinguish a company or products from competitors, aiming to create a lasting impression in the minds of customers. The key components that form a brand’s toolbox include a brand’s identity, brand communication (such as by logos and trademarks), brand awareness, brand loyalty, and various branding (brand management) strategies. Many companies believe that there is often little to differentiate between several types of products in the 21st century, and therefore branding is one of a few remaining forms of product differentiation. There is no bar on the name of the manufacturer to be a brand name as long as it is used in relation to such specified goods for the purpose of indicating a connection in the course of trade between such specified goods and the person using such name. So, the real test here is the connection between the specified goods on which such a name is being used and the person using such name in the course of trade. In the instant case, the goods in question are being sold under the brand ‘More’ in exclusive ‘More Stores’ and also bearing the registered logo of ‘Aditya Birla Retail’. Therefore, there are two brand names attached to the said goods at present. Alternatively, the consumers identify these goods by ‘More’ brands and also as those manufactured by Aditya Birla Group company - There is one more logo on the goods which bears ‘Aditya Birla Retail’, the registered trade mark of the Group company, used by the Appellant under licence agreement. Thus the goods are being identified by consumers/customers by names ‘More’ and ‘Aditya Birla Retail’. As confirmed by the Appellant, huge investment and time is involved in establishing the brands by way of consistent advertising and marketing to register in the minds of consumers/customers. There is accordingly a lot of value attached to such brands which hire some part of Customer’s mind to differentiate the goods from rival manufacturers/brands. Whether the Appellant is opting not to take advantage of brand names ‘More’ and ‘Aditya Birla Retail”? - Held that:- Merely mention of manufacturer’s name on the product as required under different statutes may not necessarily result in consideration of that product as branded. But if the name of manufacturer mentioned on the product, even as per statutory requirements, clearly establishes a link with the manufacturer and the product, then it surely amounts to be a brand name, as brand name includes any name as per explanation provided under the exemption notification. Though there is no laid down criterion in this regard, but the surrounding environment needs to be scrutinized as to whether the name of manufacturer on the product can result in consideration of brand or not - in the instant case that the answer is in affirmative. It is clear that even by removing their brand names ‘More’ and ‘Aditya Birla Retail’ from packaging of the said goods, the Appellant still enjoys the advantage attached to the said two brand names and thus the benefit of exemption cannot be extended to them. The mention of name ‘Aditya Birla Retail Limited’ on the packages, as manufacturer of the said goods clearly indicates the connection between the said goods and Aditya Birla Group in the course of trade as they are already having a registered brand in the name of ‘Aditya Birla Retail’ which was being displayed on the said goods till now - there is direct connection between the said goods and the brand ‘More’ and the manufacturer Aditya Birla Retail Ltd., thus the use of name of manufacturer on packages can be considered as brand name. Merely by removing their registered brand name logos viz. ‘MORE’ and ‘Aditya Birla Retail’ from the packaging of some of their products and keeping the surrounding environment intact to take advantage of the said brands not render such goods unbranded and the benefits of exemption notification from GST would not be available to such goods - Also, the use of words like ‘ CHOICE’, ‘VALUE’ or ‘SUPERIOR’ on the proposed packing, which are already in use with the brand ‘More’ on the present packing, would amount to branding of goods as the goods can be identified with the brand ‘More’ by the use of these words. Ruling:- The use or words ‘VALUE’, ‘CHOICE’ or ‘ SUPERIOR’ on the proposed packing, without altering the surrounding environment to take advantage of brand ‘MORE’, would be construed as ‘brand name’ for the purpose of Exemption Notification. Issues Involved:1. Whether the mention of the appellant's name on the goods, as required by FSSAI regulations and Legal Metrology Rules, amounts to a brand name.2. Whether the use of general words like ‘Choice,’ ‘Value,’ or ‘Superior’ on the goods to be sold in ‘More Stores’ would render the said goods branded.Detailed Analysis:Issue 1: Mention of Appellant's Name as a Brand NameThe appellant argued that merely mentioning the manufacturer's name on the packaging, as required by statutory regulations, should not be considered as bearing a brand name. They cited the Supreme Court's decision in Tarai Foods Limited v. CCEx. Meerut-II (2006), which held that the declaration of a company's name as per statutory requirements does not amount to bearing a brand name. The appellant contended that the name 'Aditya Birla Retail Limited' should not be considered a brand name, as it is a statutory requirement and not intended to indicate a connection between the goods and the manufacturer in the course of trade.The appellate authority, however, found that the mention of the manufacturer's name on the packaging, especially when the name is associated with a reputed brand, does create a connection in the course of trade. The authority noted that the name 'Aditya Birla Retail Limited' is well-known and associated with certain trust and quality standards. The ruling emphasized that even if the brand logos 'More' and 'Aditya Birla Retail' were removed, the mention of 'Aditya Birla Retail Limited' would still indicate a connection between the goods and the manufacturer, thereby qualifying as a brand name.Issue 2: Use of General Words like ‘Choice,’ ‘Value,’ or ‘Superior’The appellant proposed using generic terms like ‘Choice,’ ‘Value,’ and ‘Superior’ on the packaging to indicate the quality of the products. They argued that these terms are merely quality indicators and should not be construed as brand names. The appellant cited Section 9 of the Trade Marks Act, which prohibits the registration of marks that exclusively indicate the quality of goods.The appellate authority disagreed, stating that these terms, when used in conjunction with the existing branding environment (i.e., sale through 'More Stores' and the use of similar packaging styles), would still create an association with the 'More' brand. The authority noted that these terms had been previously used with the 'More' brand and were already registered in the minds of consumers. Therefore, the use of these terms would continue to indicate a connection between the goods and the 'More' brand, rendering the goods branded.Conclusion:The appellate authority upheld the Advance Ruling Authority's decision, concluding that:1. The mention of 'Aditya Birla Retail Limited' on the packaging, even if required by statutory regulations, amounts to bearing a brand name because it indicates a connection between the goods and the manufacturer.2. The use of terms like ‘Choice,’ ‘Value,’ or ‘Superior’ on the packaging, given the existing branding environment, would render the goods branded, as these terms are associated with the 'More' brand in the minds of consumers.Order:The appellate authority confirmed that the goods sold under the proposed packaging would not be eligible for GST exemption under the relevant notifications, as they would still be considered branded. The ruling emphasized that the surrounding environment and the established consumer perception play a crucial role in determining whether goods are branded.