MR. JUSTICE S.RAVINDRA BHAT

1. The plaintiff in this suit claims a permanent injunction to restrain the defendant from using BLING as a trademark or corporate name or use of the any mark similar to it for any purpose including in its domain name. Other consequential reliefs are also sought.

2. The plaintiff claims to be a design house, manufacturing and selling low end, mid segment, as well as higher end mobile handsets in the Indian market, which was incorporated on 29.07.2009. It is submits that one M.K. Enterprises, its (the plaintiffs’) predecessor in interest, had coined and adopted the BLING mark for use of their business of mobile phones and allied services, for which trademark registrations had been applied for on 07.07.2009. A copy of the application has been placed on the record during the course of the proceedings. It is contended that the plaintiff has adopted a unique market strategy with two layer distribution and e-retail management in nine major cities. Its distribution network includes 76 direct and 123 sub/micro distributors who service over 4000 top retailers in the country. The plaintiff claims that it plans to recruit 2500 in shop promoters to create differentiation at retail points. It is submitted that the BLING is the plaintiff’s used mark and was assigned by M.K. Enterprises on 30.07.2009.

3. The plaintiff claims to have extensively advertised the BLING across India; and is alleged to having incurred promotional expenses in excess to `2 Crores. It is also stated that the plaintiff has given wide publicity regarding its products and services in leading newspapers and on different websites. The plaintiff claims that adoption of BLING and association of that mark with its products has resulted in huge revenue generation since July, 2009. The plaintiff claims that its mobile phones have netted the turnover in excess of `15 Crores since their first sale.

4. The plaintiff claims that on 08.10.2010, it received a legal notice dated 04.10.2010 issued on behalf of the defendant asking it to cease and desist using BLING; the notice was replied to on 12.10.2010 by the plaintiff, which claimed prior adoption and use of BLING. The suit alleges that the plaintiff is unaware about whether the defendant has applied for trademark registration. It is stated that even though the defendant alleged in its notice that it had applied for trademark registration BLING in February, 2000, the search in that regard has confirmed that no such application is pending. The plaintiff alleges that the defendant’s use of the BLING mark for mobile phones is dishonest and in bad faith. It claims that such use or intended use with full awareness about the plaintiff’s prior adoption and use of the mark is with the purpose of appropriating the reputation and goodwill that the plaintiff has acquired ever since its incorporation and use of the mark. On these pleadings, the plaintiff also seeks an ad interim injunction.

5. This Court had, at the stage of issuing summons on 19.10.2010 granted an ex parte temporary injunction restraining the defendant from using the BLING or any other deceptively or confusingly similar mark or logo adopted by it. That injunction has continued and binds the parties till date.

6. The defendant has preferred an application -I.A. No.14366/2010, for vacation of the ex parte injunction. It alleges that the plaintiff cannot claim any exclusivity in respect of the BLING mark as there is no appreciable reputation or goodwill associated with it. The defendant contends that the plaintiff was as late as in December, 2009, known as MOVIL MOBILE and not by the mark BLING and relies upon the press reports filed in the proceedings. It is contended that the plaintiff made no effort to use, appropriate and benefit (from) the mark BLING till mid 2010 and at any rate starting has been using it only after April, 2010 whereas it (the defendant) had already launched its mobile phones with the mark BLING MICROMAX/BLING in January, 2010.

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