The main legal point established in the judgment is the recognition of transborder reputation, the prominence of the trademark on the defendant's product, and the secondary meaning of the mark in the context of the plaintiff's product in granting interim relief.

( 1 ) THIS APPLICATION FILED BY THE PLAINTIFF UNDER order XXXIX RULE 1 and 2 READ WITH SECTION 151 OF THE CODE of CIVIL PROCEDURE, 1908 (IN SHORT THE `cpc ) SEEKS interim RELIEF RESTRAINING THE DEFENDANT FROM USING THE trademark ABSOLUTE OR ABSOLUT OR ANY OTHER MARK similarly DECEPTIVE WITH RESPECT TO MINERAL WATER, packaged DRINKING WATER, AERATED WATER OR ANY OTHER GOODS whatsoever.

( 2 ) THE SUM AND SUBSTANCE OF THE PLAINTIFF s CASE IS THAT IT MARKETS THE ALCOHOLIC BEVERAGE VODKA BY THE NAME of "absolut" WHICH WORD ACCORDING TO THE PLAINTIFF WAS coined IN THE YEAR 1879. ACCORDING TO THE PLAINTIFF, ITS mark "absolut" IS USED OUTSIDE SWEDEN SINCE 1979 AND thereafter BECAME A WORLDWIDE PRODUCT. SINCE 1998 THE "absolut" VODKA HAS BEEN SELLING IN THIS COUNTRY, I. E. , india IN THE DUTY FREE SHOPS AND IN NOVEMBER, 2003 "absolut" VODKA WAS ALSO MARKETED IN THE INDIAN OPEN market ATTRACTING MEDIA ATTENTION. THE ABSOLUT MARK IS registered IN INDIA ON 16th MAY, 1986 IN CLASS 33. IT IS also SUBMITTED THAT IN MANY COUNTRIES THE PLAINTIFF s mark "absolut" WAS REGISTERED FOR MINERAL WATER AND aerated WATER. THE PLAINTIFF HAS MOVED AN APPLICATION for REGISTRATION OF ITS MARK "absolut" IN INDIA IN class 32. THE PLAINTIFF HAS PLEADED A LARGE MARKET presence, TRANS BORDER REPUTATION AND IDENTIFICATION OF its GOODS WITH THE MARK "absolut". BY THIS APPLICATION for EX-PARTE AD-INTERIM INJUNCTION, A RELIEF HAS BEEN sought AGAINST THE DEFENDANT FOR MARKETING CLUB SODA AND packaged DRINKING WATER BEARING THE TRADEMARK "absolut".

( 3 ) THE SUM AND SUBSTANCE OF THE PLAINTIFF s CASE IS THAT NOT ONLY ITS MARK "absolut" HOLDS VERY GOOD AND indeed WORLDWIDE AND TRANS-BORDER REPUTATION BUT THE submission IS THAT BY USING THE MARK "absolut" IN RESPECT of COGNATE GOODS, THE DEFENDANT IS VIOLATING THE established RIGHTS OF THE PLAINTIFF.

( 4 ) THE CASE OF THE DEFENDANT IS THAT THE MARK EMPLOYED BY IT IS NOT "absolut" BUT "kullu VALLEY MINERAL water ABSOLUTE" , OF WHICH ABSOLUTE IS ONLY A PART. THE whole MARK IS "kvmw ABSOLUTE" AND "absolut" IS ONLY A small PART THEREOF. IT IS SUBMITTED THAT THE DEFENDANT is MARKETING MINERAL WATER REGISTERED IN CLASS 32 AND ARE not BEVERAGES AND HENCE THE PLAINTIFF WHO MARKETS beverages IS NOT ENTITLED TO INTERIM INJUNCTION AS PRAYED for IN THE INJUNCTION APPLICATION.

( 5 ) THE DEFENDANT HAS APPLIED FOR REGISTRATION OF ITS MARK "kvmw ABSOLU TE" IN JANUARY, 2003. I HAVE perused THE RIVAL MARKS IN QUESTION. UPON A PERUSAL OF the TWO RIVAL PRODUCTS IN QUESTION, IT IS EVIDENT THAT the LETTERS "kvmw ABSOLUTE" ARE PRINTED IN ABOUT 1/4th size OF THE "absolute" PRINTED IN RESPECT OF THE CLUB soda AND PACKAGED DRINKING WATER. THUS THE WORD ABSOLUTE figures PROMINENTLY AND KVMW FIGURES IN AN INSIGNIFICANT manner AND SIZE, CONTRARY TO ASSERTIONS OF THE COUNSEL for THE DEFENDANT.

( 6 ) A PRIMA FACIE VISUAL PERUSAL OF THE PRODUCT OF THE DEFENDANT DEMONST RATES ITS LOGO "kullu VALLEY mineral WATER ABSOLUTE". THIS APPEARS TO BEAR A LOGO "kvmw" AT THE TOP LEFT HAND CORNER AND THE WORDS "absolut" ARE WRITTEN IN MUCH LARGER, BIGGER AND prominent LETTERS. THUS THE PLEA OF THE DEFENDANT PRIMA facie THAT ITS MARK WAS NOT "absolut" BUT "kullu VALLEY mineral WATER ABSOLUTE"and ABSOLUT WAS ONLY A PART OF the KVMW DOES NOT SEEM TO BE BONA FIDE UPON A VISUAL perusal OF THE DEFENDANT s PRODUCT, SAID TO BE IMPUGNED in THE PLAINTIFF s MARK.

( 7 ) MR. SUMAN KAPUR, THE LEARNED COUNSEL, APPEARING ON BEHALF OF THE DEFENDANT HAS VEHEMENTLY CONTENDED THAT the MINERAL WATER AND DRINKING WATER ARE NOT BEVERAGES and HENCE THE DEFENDANT CANNOT BE ESTOPPED FROM USING THE mark "kullu VALLEY MINERAL WATER ABSOLUTE". HE ALSO submitted THAT THE REGISTRATION OF THE PLAINTIFF IS ONLY in RESPECT OF BEVERAGES AND SECONDLY THE PLAINTIFF s product IS ALCOHOLIC IN NATURE AND THE DEFENDANT s product IS NON-ALCOHOLIC. IN MY VIEW THE CONCEPT OF THE intellectual PROPERTY RIGHTS CANNOT BE CONSTRUCTED pedantically. IF AN ASSOCIATION OF THE PARTIES products ESPECIALLY