V.K. JAIN, J

1. This is a suit for permanent injunction, grant of damages and delivery up of infringing material. The plaintiff was incorporated under the name Ever Ready Company (India) Ltd. on June 20, 1934 under the Companies Act, 1913. The name of the plaintiff-company was changed from time to time and was last changed to Eveready Industries India Limited on April 24, 1995. The plaintiff-company is engaged mainly in the business of manufacturing and trading of dry cell batteries, re-chargeable batteries, flash lights, compact fluorescent lamps, general service lamps, insect repellants and packet tea. The plaintiff-company has 46% share in dry cell batteries and 80% in flash lights in the organized sector. The carbon zinc batteries manufactured by the plaintiff are sold under the mark EVEREADY since 1905 when its predecessor-in-title National Carbon Company (India) Limited came into existence. The plaintiff is the registered owner of the trademark EVEREADY and EVEREADY (device) and it is using the aforesaid trademark in respect of cell batteries, re-chargeable batteries, flash lights, compact fluorescent lamps, general service lamps, insect repellants and packet tea. The trademark EVEREADY also forms a prominent and dominant feature of its corporate name Eveready Industries (India) Limited. This is also the case of the plaintiff that its trademarks EVEREADY and EVEREADY (device) have acquired a unique reputation in the mind of purchasing public and trade on account of quality of the products which are sold under the marks. The trademark EVEREADY is registered in favour of the plaintiff-company in respect of various classes mentioned in para 10 of the plaint. The plaintiff claims advertisement expenditure of Rs 3795.29 lacs, 4317.03 lacs and 3858.88 lacs in the years 2005-06, 2006-07, 2007-08 respectively.

2. It is alleged in para 13 of the plaint that in or about 1st September, 2008, it first came to the knowledge of the plaintiff that the defendant was using the mark EVEREADY and EVEREADY (device) in relation to hand tools, etc. when defendant No.2 opposed the registration of plaintiff”s trademark in class 8 vide opposition No. CAL-723369, claiming to be registered proprietor of registered trademarks No.439233 and 539621 both in class 8. Defendant No.1 is the owner of defendant No.2 and claims assignment of the mark EVEREADY and EVEREADY (device) from her. The plaintiff has filed rectification applications before Intellectual Property Appellate Board (IPAB), Chennai with respect to the trademarks registered in the name of defendant No.2.

3. The case of the plaintiff is that adoption of the impugned trademark by defendants is in violation of its proprietary rights with respect to the trademark EVEREADY and EVEREADY (device) and the defendants are guilty of passing off their products as those of the plaintiff. It is alleged that misrepresentation to the consumers is bound to cause confusion or deception in their mind and dilute the distinctive character of plaintiff”s trademark. It is further alleged that the defendants have copied all essential and dominant features of EVEREADY (device) and are using the same get up, lay out, combination and arrangement of features, which could not have been co-incidental and is a deliberate act on their part, to take advantage of the impeccable quality of the goods of the plaintiff.

4. Vide IA No.9913/2009 the plaintiff has sought interim injunction against use of the mark EVEREADY as well as EVEREADY (device) or any other mark/trade style identical or deceptively similar to the trademark and device of the plaintiff. They have also sought injunction against reproduction of any of the essential features, i.e., get up, writing styles, arrangement of features and size of the art work of the plaintiff in EVEREADY (device) in any manner on the packaging, brochures, letterheads, bills, etc. of the defendants.

5. The suit has been contested and the application opposed by the defenda