Rajiv Sahai Endlaw, J.

IA No.20759/2013 (of the plaintiff u/O XXXIX Rules 1&2 CPC)

1. The plaintiff has instituted this suit for permanent injunction restraining the defendant from selling, distributing, advertising or dealing in alcoholic beverages especially Indian made Foreign Liquor (IMFL) or goods of any description bearing the trade mark “Collector’s Choice” or any other mark deceptively similar to the plaintiff’s trade mark “Officer’s Choice” and amounting to infringement of the plaintiff’s registered trade mark and / or amounting to passing off the defendant’s goods and business as those of the plaintiff and from taking unfair advantage of or causing detriment to the reputation of the plaintiff’s trade / label mark “Officer’s Choice” and for the ancillary relief of delivery and destruction of infringing goods.

2. Summons of the suit were issued and vide ex parte ad-interim order dated 19.12.2013 which continues to be in force, the defendant was restrained from manufacturing, selling, exporting, importing, offering for sale, distributing, advertising or dealing in alcoholic beverages especially IMFL and goods of any description bearing the trade mark “Collector’s Choice” or any other mark deceptively similar to the plaintiff’s trade mark “Officer’s Choice” and amounting to the infringement of the plaintiff’s registered trade mark.

3. Pleadings have been completed and the counsels have been heard on the application for interim relief. Both counsels have also filed written synopsis of their submissions.

4. It is inter alia the case of the plaintiff;

(i) that the plaintiff is engaged inter alia in the business of manufacturing and marketing of alcoholic beverages including IMFL;

(ii) that the predecessor in right, title and interest of the plaintiff had coined and adopted the trade mark “Officer’s Choice” in the year 1988;

(iii) that the plaintiff became the proprietor of the said trade mark “Officer’s Choice” on 23.02.2007;

(iv) “Officer’s Choice” is one of the most popular of the trade marks of the plaintiff and has acquired an enviable reputation and goodwill as a result of its excellent quality, distinctive packaging and characteristic viz. palatable taste, flavour, blending etc. and is one of the highest selling brands of the plaintiff and is considered as one of the largest selling whiskies in India;

(v) that the plaintiff is the registered proprietor of the trade mark “Officer’s Choice” in various classes, list whereof is given in para 6 of the plaint and which registrations are valid;

(vi) that the plaintiff has also acquired common law trade mark rights in the overall combination by virtue of exclusive and extensive use of the said trade mark since the year 1988;

(vii) that the defendant also is engaged in the business of blending, manufacturing, producing, bottling and selling alcoholic beverages;

(viii) that the plaintiff in November, 2013 became aware of the defendant having started selling whisky under the mark “Collector’s Choice” which is conceptually identical and deceptively similar to the plaintiff’s trade mark “Officer’s Choice”;

(ix) that the plaintiff on making enquiry learnt that the defendant has sought to obtain registration of the impugned mark (label) and had filed an application dated 23.06.2011 under Class 33 on a proposed to be used basis; however the said application had been objected to by the Trade Mark Registry and the defendant while replying to the said objection had made reference to the plaintiff’s trade mark “Officer’s Choice” and which clearly establishes that the defendant has adopted the impugned mark despite admittedly having knowledge of the plaintiff’s trade mark;

(x) that the adoption and use by the defendant of the impugned mark “Collector’s Choice” is a blatant infringement of the plaintiff’s rights and with an intent to usurp the plaintiff’s statutory and common law rights in its “Officer’s Choice” mark.

5. The defendant contested the suit by filing a written statemen