The main legal point established in the judgment is that the Commissioner’s report is admissible as evidence in the suit, and the Plaintiff and its affiliate/associate companies should be treated as one economic entity for the purpose of trademark protection.

Prathiba M. Singh, J.

The present appeal arises out of judgment/order dated 28th November, 2006 passed by the Ld. Additional District Judge by which the suit filed by the Appellant/Plaintiff (hereinafter ‘Appellant’) was dismissed. The suit was initially filed before the original side of this Court and later on transferred, on the increase in the pecuniary jurisdiction, to the district court. The Respondent/Defendant (hereinafter ‘Respondent’) was proceeded ex-parte before the trial court. In view of the fact that the Respondent could not be served after repeated attempts in this appeal, on 28th May, 2007 this Court ordered that the Respondent would be served by publication. The Respondent was served by publication in the Indian Express, Hyderabad edition and citation report was filed. There was however no appearance on behalf of the Respondent.

2. Initially, an ex-parte ad-interim injunction was granted on 3rd October, 2001 which was continued till the disposal of the suit. Suit was dismissed on 28th November 2006. Vide order dated 28th May 2007, in the present appeal, it was directed that the injunction granted on 3rd October, 2001 would continue. Thereafter, the appeal was admitted on 23rd October, 2007. The matter has been taken up for hearing today. None appears for the Respondent despite service.

3. The Plaintiff filed the suit for permanent injunction restraining the infringement of trademark, copyright and passing off in respect of the Plaintiff’s trademark “LEVI’S”, “LEVI STRAUSS”, derivatives and labels thereof (hereinafter `trade marks'). The Plaintiff claims to be using the trade mark since 1850 and claims to be one of the well known brands for wearing apparels, particularly jeans. The Plaintiff is the registered proprietor of the trade marks. Details of the same are set out in paragraph 8 of the plaint. According to the plaint, the Defendant was selling wearing apparels bearing identical logos and devices as of the Plaintiff. The Plaintiff, thus, prayed for permanent injunction and damages.

4. Initially, on 3rd October, 2001 an ex-parte ad-interim injunction was granted in favour of the Plaintiff and a Local Commissioner was also appointed to visit the premises of the Defendant located at Hyderabad to make an inventory of the infringing products. The said Local Commissioner had filed his report on 6th October, 2001. The Defendant initially entered appearance, but thereafter stopped appearing in the suit. Accordingly, the Defendant had been proceeded ex-parte on two occasions. However, written statement was filed by the Defendant, which is on record. Plaintiff filed the evidence of Mr. Ashish Oberoi, authorized signatory. Ex-parte arguments were heard. Vide order dated 28th November, 2006 the suit of the Plaintiff was dismissed.

5. The impugned order finds that the Court has territorial jurisdiction to try the suit. Learned Additional District Judge, however dismissed the suit on two primary grounds i.e. first that the Local Commissioner, who had seized the infringing goods of the Defendant at Hyderabad on 6th October 2001, had not been examined by the Plaintiff and secondly on the ground that no assignment was placed on record to show that the Plaintiff company had assigned its marks to Levi’s Strauss India Pvt. Ltd., an affiliate entity of the Plaintiff in India. The relevant findings in the impugned judgment are set out below:

"18. The plaintiff has neither examined the Local Commissioner nor produced the seized goods to show that by said goods the defendant had infringed the trademarks and copyright of the plaintiff and was passing off his goods as that of the plaintiff. Since the alleged goods of the defendant have not been produced thus, the plaintiff has failed to prove that the defendant had infringed the trademark and copyright of the plaintiff.

19. Moreover, the plaintiff has averred that it has sale's turn over in US dollar in billion since from the year 1994 till 2000 and it had incurred expenditure