1. This suit by Yahoo! Inc. a corporation, organized under the laws of the State of Delaware, USA, having its registered office in California, is directed against Apricot Foods Pvt. Ltd. (AFPL) (Defendant No. 2), Mr. Sanjay Patel (Defendant No. 1) Director of AFPL and Shri Jee Traders (Defendant No. 3), seeking permanent injunction to restrain the Defendants from infringing the Plaintiffs trademark, passing off, damages and delivery up etc.

2. Summons in the suit and notice in the application were issued on 10th April 2015. The relevant portion of the said order reads as under:-

“Issue notice, returnable before the Court on 27.7.2015.

The plaintiff claims to be the owner of the trademark YAHOO. It has been registered in India in various Classes including Classes 29 and 30, which covers snack foods, snack mixer, snack bar, pretzels, tortilla chips, etc. The defendants are stated to be infringing the plaintiffs trademark by manufacturing and marketing products falling in Classes 29 and 30. The merchandise being marketed is under the name YAHOO MASALA CHAKRA and YAHOO TOMATO TANGY. A consignment of the products being manufactured and marketed by the defendants was purchased by an agent/investigator of the plaintiff and the goods were delivered in Delhi, which contained the infringing trademark YAHOO MASALA CHAKRA and YAHOO TOMATO TANGY. The plaintiff claims protection from infringement of its trademark YAHOO.

The plaintiff has made out a prima facie case for an ex-parte ad interim order and in case such an ex-parte ad interim order is not granted at this stage, irreparable prejudice would be caused. The balance of convenience too is in favour of the plaintiff.

In the circumstances, till the next date of hearing, the defendants, their partners or proprietors as the case may be, their principal officers, servants and agents, group/sister concerns or companies are restrained from manufacturing, selling, offering for sale, distributing products or offering services, advertising including on the Internet, and in any other manner using the Yahoo trademark or any other deceptively similar mark as part of their product name, etc. amounting to infringement of the plaintiff/s registered trademarks in Classes 29 and 30.”

3. Subsequently on 23rd February 2016, this Court passed an order as under:-

“Shri Ankur Agarwal, the sole proprietor of defendant No. 3-Shri Jee Traders, is present with his counsel. He has produced his identity card as proof of his identity and his counsel also identifies him. Defendant No. 3 states that the defendant is not dealing with the products with the trademark of the plaintiff, namely, Yahoo. He further states that he shall not deal in any products with the said marks. He undertakes to the Court to the aforesaid effect.

Learned counsel for the plaintiff submits that in view of the said undertaking being given by defendant No. 3, the plaintiff does not press the relief for damages against defendant No. 3. Accordingly, qua defendant No. 3, this suit stands decreed in terms of prayer 59(i) and (ii). The defendant No. 3 shall remain bound by the undertaking.

Defendant Nos. 1 and 2, despite service, neither appeared nor filed their written statement. Accordingly, they are proceeded ex-parte. The plaintiff may file the affidavit by way of evidence towards examination-in-chief with documents within four weeks.

List the matter before Joint Registrar for marking exhibits on 06.04.2016 and before Court on 10.08.2016.

The order dated 10.04.2015 passed in IA No. 7131/2015 is confirmed till the disposal of the suit.”

4. The Court thus decreed the suit in terms of prayer 59(i) and (ii) against the Defendant No. 3. The Court also set the Defendant Nos. 1 and 2 as ex-parte since despite service neither of them appeared.

5. The Plaintiff then filed an affidavit of ex-parte evidence of Col. J.K. Sharma (PW-1) on 27th May 2016.

6. The uncontroverted facts emerged from the affidavit of PW-1 are as under:-

(i) Yahoo is a corporation having i