The main legal point established in the judgment is the maintainability of the suit for infringement under Section 134(1) of the TM Act and the impact of the defendant's use of the mark 'REAL' on the plaintiff's goodwill and reputation.

IA No. 11394 of 2012 (Order XXXIX Rules 1 and 2 CPC by the Plaintiff) and IA No. 11656 of 2012 (Order XXXIX Rule 4 CPC by Defendant No.1)

1. The background to these applications is that Dabur India Limited has filed the above suit to restrain Real Drinks Pvt. Ltd., Goa (Defendant No.1) and IndiaMART InterMESH Limited (Defendant No.2) from infringing the Plaintiff’s registered trademark ‘REAL’ and from using ‘REAL’ or any other mark identical thereto or similar therewith as may be likely to cause confusion or deception amounting to passing off of Defendants’ goods as those of the Plaintiff.

2. Defendant No.2 informed the Court at the hearing on 11th October 2012, that it was prepared to suffer a decree in terms of paras 27(i) and (ii) of the plaint. The Plaintiff then gave up the other reliefs against Defendant No.2. Consequently, by an order passed on that date, the suit was decreed against Defendant No.2. As a result, Defendant No.1 alone is contesting the present case.

3. The Plaintiff is stated to be the 4th largest fast-moving consumer goods company in India engaged in the business of manufacturing pharmaceutical, toiletries, Ayurvedic medicinal preparations, digestive tablets, fruit juices etc. since 1884. The Plaintiff’s house mark ‘DABUR’ is claimed to be a trusted household name. It is stated that the Plaintiff spends more than Rs. 343 crore per annum on publicity and advertisements out of an annual turnover of approximately Rs. 2,800 crore. The Plaintiff’s products are stated to be widely marketed both in India and abroad and are known for their high quality and hygienic standards that meet the changing needs and tastes of consumers.

4. It is stated that one of the premium brands of the Plaintiff is packaged juice which was launched in 1994 under the trademark ‘REAL’. It is submitted that the juices are prepared from natural fruit pulp/juice concentrates mixed with water packed in “Freshness Seal Packs.” It is submitted that the trademark ‘REAL’ is a suggestive mark having a remote suggestion that the juices have freshness of fresh fruits and is, therefore, not a descriptive trademark. It is stated that the trademark ‘REAL’, therefore, is entitled to protection as a suggestive and arbitrary mark. It is stated that, on account of long and continuous use since 1994, extensive marketing and sale campaign, the fruit juice sold under the mark ‘REAL’ has acquired considerable goodwill and reputation amongst the members of trade and public at large and has acquired the status of a well-known brand which connotes the fruit juices originating from the Plaintiff exclusively. The sales figures of ‘REAL’ for the years 1997-2012 have been set out in para 7 of the plaint. It was Rs. 322 crores in 2010-2011and Rs. 414 crores in 2011-12. The advertisement and promotional expenses, as stated in para 8, were Rs. 17.65 crores in 2010-2011 and Rs. 17.70 crores in 2011-2012.

5. The Plaintiff holds registration under the Trade Marks Act 1999 (‘TM Act’) for Real Pineapple Juice carton under registration No.712846 under Class-32. A copy of the registration Certificate No.712846 has been placed on record. The trademark for which registration has been granted is as under:

“IMAGE”

The Plaintiff states that it has also filed an application for the word mark ‘REAL’ under application No. 849164 in Class-32, which is pending.

6. Defendant No.1, a company based in Goa, is stated to be engaged in the manufacture and marketing of fruit flavoured drinks, soft drinks, aerated drinks and packaged drinking water. Defendant No.1 is stated to have adopted ‘REAL’ as trademark and is selling aerated drinks and fruit flavoured drinks under the trademark ‘REAL’. The information regarding the product of Defendant No.1 is stated to be available on the website of Defendant No.2, which is India’s online B2B (business to business) marketplace. The Plaintiff states that it is not aware of the inter se business relations between the two Defendants.

7. The Plaintiff a