VIKRAMAJIT SEN, J.

1. On October 14, 2009, Learned Counsel for the Appellant in FAO(OS) 497/2008 had concluded arguments by making a statement to the effect that she has instructions to adopt the arguments addressed by Mr Rajiv Nayyar, Learned Senior Counsel appearing for the Appellant in FAO(OS) 484/2008. This Appeal has been filed by the Defendants who the learned Single Judge had restrained from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in whisky or any other alcoholic beverages under the trademark Imperial Gold or the impugned label/trade dress pertaining thereto or any other trademark/label/trade dress as may be deceptively similar to the trademark of the Plaintiff/Respondent viz. IMPERIAL BLUE, IMPERIAL RED or ROYAL STAG.

2. The competing or offending products are whiskies belonging to the rival parties, which are bottled in the following styles, first front and second back:-

3. The Plaint describes the action as a suit for permanent injunction restraining infringement of registered trademark, copyright, passing off, dilution, unfair competition, rendition of accounts of profits , deliver-up etc. The Plaintiffs are indeed a part of an international group selling sundry alcoholic beverages across the Globe. Some of their brands are not only well-known but are leaders in the market, such as ROYAL SALUTE, CHIVAS REGAL, BEEFEATER, BALLANTINES, KALHUA, BLENDERS PRIDE etc. It is averred that one of the most popular whiskies sold by the Plaintiffs in India since 1997 is IMPERIAL BLUE which is a registered trademark and has “come to be associated with, and become a quintessential part of the plaintiff no.1 successful and firmly established business of manufacture and sale of whisky.” IMPERIAL BLUE appears to have been accorded registration in the Benelux and Nepal. So far as India is concerned, the following chart is fully informative:-

REGISTRATION IN INDIA

Trade Mark Regn. No. Date Class Goods

IMPERIAL BLUE 751781 12/02/1997 33 Spirits and liquers

IMPERIAL BLUE 1318300 01/11/2004 32 Drinking water included in class 32

IMPERIAL BLUE 1282836 07/05/2004 9 Compact discs, audio and video cassettes,

photograph records etc.

IMPERIAL RED 1377908 17/08/2005 32 Beers, minerals and aerated waters and other non alcoholic drinks, fruit drinks and fruit juices, syrups and other preparations for making beverages included in class 32

4. The Plaint further sets out the turnover of IMPERIAL BLUE for the period 1998 to 2007 which increased manifold from Rupees 12.80 crores to Rupees 317.88 crores. As is to be expected, promotional and marketing expenses incurred by the Plaintiffs also run into several crores of Rupees. The Plaint then unfolds that “international whisky manufactured and marketed by the plaintiff is under the trademark ROYAL STAG which is very popular in the lower price segment and best known for smooth taste..... the trademark ROYAL STAG is coined mark having no significance or meaning in common parlance and no correlation to the character or quality of whisky marketed thereunder”. The Plaintiffs have obtained registration for the trademark ROYAL STAG internationally as well as in India. In this regard, it is pleaded in the Plaint that ROYAL STAG label constitutes an original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957. Since the Plaintiffs have an extensive trade use since 1995 ROYAL STAG has become distinctive of the whisky marketed by and originating from the Plaintiffs and is also available in the United Arab Emirates, Benelux, Bulgaria, Romania, Oman, Hong Kong, Vietnam etc. In paragraph 23 of the Plaint, it has been asserted that it had “come to the knowledge of the plaintiffs in 2nd week of September, 2008 that the Defendants are manufacturing, bottling and/or selling whisky bearing the trademark Imperial Gold which is an imitation of the trademark IMPERIAL BLUE and IMPERIAL RED and using trade dress which is an imitation of ROYAL STA