Hon'ble Judges/Coram:
D.K. Deshmukh

JUDGMENT

D.K. Deshmukh, J.

1. This Notice of Motion is taken out by the Plaintiffs. The suit has been filed by the Plaintiffs on the basis of their registered label mark bearing No. 436744 of which one of the essential features is a numeral "5000". According to the Plaintiffs, the Defendant is committing acts of infringement and passing off by using the trade mark "PRESTIGE 5000" and "FOUR SQUARE 5000" of which, the numeral "5000" forms an essential feature. According to the Plaintiffs, Section 28 of the Trade Marks Act, 1999 gives an exclusive right to the Plaintiffs to use the trade-mark "HAYWARDS 5000" and the essential features thereof including the numeral "5000" and also gives rights to the Plaintiffs to prevent anyone from using any deceptively similar trade-mark. According to the Plaintiffs, in or about the year 1983 the first Plaintiff adopted for and in respect of its strong beer the distinctive trade mark "HAYWARDS 5000", of which numeral "5000" forms leading and essential feature, with a view to distinguish its goods from those of others. According to the Plaintiffs, the said numeral "5000" is a fancy numeral and does not have any reference to the character or quality of the strength of the beer. According to the Plaintiffs, between the year 1983 and 2000 the first Plaintiff got manufactured from its contract bottlers strong beer of particular test and quality and sold it under its said trade mark on a continuous and extensive basis. From the year 2001 the 2nd Plaintiff under a licence agreement in writing from the 1st Plaintiff, has been getting manufactured from its contract bottlers and selling the same beer under the said trade mark "HAYWARDS 5000" on a continuous and extensive basis. According to the Plaintiffs, during all these years the Plaintiffs have effected large sales of their beer bearing the said trade mark. The Plaintiffs have filed a statement showing their annual sales from 1993-94. The Plaintiffs state that they have made efforts to popularise their beer sold under the said trade mark and have issued sale material bearing the trade mark "HAYWARDS 5000". They have spent substantial sums of moneys on publicity and sales promotional expenses. They have filed a chart showing the expenditure incurred by them for publicity. According to the Plaintiffs, due to superior quality of the beer sold under the trade mark "HAYWARD 5000" as also long, continuous and extensive user of the said trade-mark and wide publicity given to it by the Plaintiffs, the said trade-mark has acquired immense reputation and is being exclusively associated by the members of the trade and public with the Plaintiffs and their beer. According to the Plaintiffs, the beer of the Plaintiffs sold under a trade mark "HAYWARD 5000" is the country's largest selling strong beer. According to the Plaintiffs, numeral "5000" forms a memorable part of the said trade mark and the Plaintiffs' advertisement also emphasises the said numeral. According to the Plaintiffs, in 1985 the first Plaintiffs applied for and obtained a registration of the label mark containing the said trade mark "HAYWARDS 5000" and the registration of the trade mark has been renewed from time to time. As a result of the registration of the trade-mark by virtue of the provisions of Section 28, according to the Plaintiffs, the Plaintiffs have an exclusive rights to use the trade-mark "HAYWARD 5000" and they also have a right to prevent anyone from using any deceptively similar trade-mark. According to the Plaintiffs, the Plaintiffs have been vigilantly protecting their aforesaid exclusive rights. They came to learn that Superior Industries Ltd. of New Delhi commenced use of the trade mark "Superior 5000" in respect of their beer and they filed a suit in the Delhi High Court c........