The judgment establishes the exclusive rights of a registered proprietor under Section 28 of the Trade and Merchandise Marks Act, 1958 and emphasizes the protection of trademarks against infringement and passing off.

( 1 ) THE plaintiff Mars, Incorporated is a company organised and existing under the laws of the State of delaware, USA having its principal place of business at 6885, Elm Street, Mclean, Virginia 22101-3883. United states of America. Mr. Debjit Gupta is the constituted attorney of the plaintiff duly authorised to sign and verify the plaint and institute the suit on its behalf.

( 2 ) THE plaintiff is an internationally renewed manufacturer and a world leader inter alia in confectionery items ice-creams and choclates and is the registered proprietor of the trade mark milky WAY in india, the particulars of which are as follows:-

MILKY WAY 3686 30 19/8/1942 Chocolate and sweetmeats milky WAY 400610 30 27/1/1983 Confectionery biscuits and chocolates

( 3 ) THE said registrations have been renewed from time to time and are subsisting as of date. In addition, the plaintiff has also applied in Class 30 for registration of the trademark MILKY MAY (word) under application No. 617954 dated 28/1/1994 and for the trademark MILKY WAY represented in colour in a stylized script under application No. 633219 dated 7/7/1994. Both the said applications are pending.

( 4 ) IT is, averred that the trademark MILKY WAY was first adopted and used in respect of confectionery products by the plaintiffs in 1923. Use of the said trademark commenced in the year 1989 in respect of ice creams of the plaintiff s manufacture. The plaintiff has used the trademark MILKY MAY uninterruptedly and extensively since then. In addition to worldwise use, the plaintiff s trademark MILKY WAY is registered in more than 160 countries all over the world. The plaintiff s confectionery product, inter alia under the trademark milky WAY, are freely available in New Delhi and other parts of India. Such goods are brought into India through official and other channels and made available to the public through retail shops. The plaintiff s MILKY WAY confectionery products, including chocolates are sold in bonded warehouses, duty free shops and customs notified shops all over India, including at Delhi.

( 5 ) IN the month of november 1999, the plaintiffs attention was drawn to the appearance of a confectionery product, being toffees, under the trademark MILKEY WAY, in the Delhi markets. The plaintiff immediately initiated an investigation which revealed that the said product is being manufactured and distributed by the defendants. The plaintiff s investigations further disclosed that the manufacturer of the product is Defendant no. 4, that is M/s. Alka Food industries which is apparently a sole proprietary concern of Mr. Pritam Dass, having its address 26, S. S. I. , Laghu udyog Nagar, G. T. Karnal Road, Delhi. Defendant no. 3, Alka ayurvedic Pvt. Ltd. also carrying on business at 26 S. S. I. Laghu Udyog Nagar, G. T. Karnal Road, Delhi is the distributor/marketing agent of the products manufactured by defendant no. 4. Defendant No. 1, Mr. A. K. Gera and defendant no. 2, Mr. Rakesh Gera, both sons of Mr. Pritam dass, are the responsible directors of defendant no. 3 and are knowingly, wilfully and deliberately engaged in the business of dealing in the confectionery product Under the trademark MILKEY WAY.

( 6 ) IT is averred that the impugned mark is a handle of fraud in the hands of the defendants who are making a misrepresentation to the innocent buyers that their goods are those of or approved by or somehow connected with the plaintiff. Such misrepresentation as to the origin and/or trade connection of the goods under the impugned mark is bound to cause deception or confusion among unwary consumers, primarily comprising of children and lead to passing off the said goods and and for the goods of the plaintiff. As to the availability and sale of products in question, it is averred that under the liberalized import policies of the Government placing several categories of consumer articles under Open General Licence (OGL), food items of a large number of foreign manufacturers ar