The main legal point established in the judgment is the recognition of prior and concurrent user rights, the requirement for distinctiveness and association with the mark, and the balance of convenience for granting injunction.

1. This Order will dispose of the application for interim injunction, I.A. No. 11355/2007 and the application for vacation of the ex parte interim injunction order, IA No.13772/2007.

2. Lowenbrau AG and InBev India International Pvt. Ltd. (hereinafter collectively referred to as the plaintiffs, for short) have filed the present suit for permanent injunction, rendition of accounts, mandatory injunction in form of delivery up against Jagpin Breweries Ltd and Lowenbrau Buttenheim (hereinafter collectively referred to as the defendants, for short). The plaintiffs claim exclusive right to use the mark/word LOWENBRAU, device of lion and seek a restraint order against the defendants from using the mark LOWENBRAU, device of lion or any other trade mark or device mark identical or deceptively similar. By an ex parte injunction order dated 3rd October, 2007 the defendants have been restrained from manufacturing, selling and advertising under the mark/word LOWENBRAU, device of lion or any other trade mark/device mark identical or deceptively similar to the said mark or device.

3. Lowenbrau A.G., plaintiff no.1 and Lowenbrau Buttenheim, defendant no.2 are entities incorporated under the laws of Germany. Both of them manufacture beer, which is sold in Germany and other countries. The beer manufactured by the plaintiff No.1 is sold under the mark/name LOWENBRAU with or without other word/mark, while the beer manufactured by the defendant no.2 is sold under the mark LOWENBRAU BUTTENHEIM along with other words/marks in Germany and other countries.

.4. Both the plaintiff no.1 and the defendant no.2 claim substantial turnovers and sales in Germany and other third countries. There is also no dispute that the plaintiff no.1 and defendant no.2 are not presently involved in any litigation on the right to use the mark/word LOWENBRAU in any country except in India. Both parties agree that there was litigation in Germany in respect of right to use the mark/word LOWENBRAU which was decided more than 100 years back in 1903 in favour of the defendant no.2. It was held that the mark/word LOWENBRAU cannot be monopolised as there were a number of breweries in Germany who had been using the said word/mark for a long time and therefore the mark/word LOWENBRAU cannot be used to differentiate beer of one brewery from another.

5. Faced with the above factual background, the plaintiffs have based their claim/cause on infringement of the registered mark/word LOWENBRAU and their statutory rights under the Trademarks Act, 1999 (hereinafter referred to as the Act, for short). It may be however noticed that the cause title of the plaint states that the suit of the plaintiffs is both for infringement and passing off.

6. The plaintiff No.1s mark/word Lowenbrau Export - Bier was registered in 1960 with the disclaimer qua the mark/word LOWENBRAU and device of lion. Subsequently, the plaintiff No.1 got the mark/label Lowenbrau munchen registered in India in 1972. In 1994, the plaintiffs got the mark/word LOWENBRAU registered in India but this time without any disclaimer. Similarly in 1969, the plaintiffs have got the mark black stylised lion registered in India. In nutshell, the case of the plaintiffs is that the defendants cannot use the mark/word Lowenbrau Buttenheim as the plaintiff No.1 is the registered proprietor of the mark/word LOWENBRAU without disclaimer and therefore in terms of the statute, i.e. the Act, the defendants have no right to use the mark/word LOWENBRAU in India. It was submitted that the use of the mark/word LOWENBRAU by the defendants outside India is irrelevant and the defendants cannot take advantage/benefit of territorial use of the mark/word LOWENBRAU outside India to defeat the statutory rights of the plaintiffs. The plea of prior user, it was stated, is not available to the defendants as the mark was used by the defendants for the first time in India in 1999 and on that date the plaintiff No.1 was already the registered ow