Deceptive similarity of trademarks and the dominant feature of a mark in determining trademark infringement.

ORDER

Prathiba M. Singh, J. (Oral). - This hearing has been done through hybrid mode.

I.A.4356/2021 (for stay)

2. The present injunction application has been filed seeking ad interim injunction in respect of the use of the mark 'EVENING MOMENT' by the Defendants, which is deceptively similar to the Plaintiffs mark 'MAGIC MOMENTS' registered in Class 33 for alcoholic beverages.

3. The case of the Plaintiff is that it is one of the largest manufacturers and sellers of Indian Made Foreign Liquor (IMFL) in India. One of its leading products branded as 'MAGIC MOMENTS' has annual sales of more than Rs. 1,700/- crores in the year 2019-2020, and cumulative sales of 15 years from 2005 to 2020 of over Rs. 11,000/- crores. The grievance in the present suit was that the Defendant No. 1 was using the mark 'EVENING MOMENT' for whisky manufactured by it. The Defendant No.2 is the proprietor of the impugned trademark 'EVENING MOMENT' in Class 33 for alcoholic beverages, vide Trademark Application No.3644751, though the same was filed on a 'proposed to be used' basis.

4. The suit was listed for the first time on 22nd March, 2021. On the said date, the Court had granted an ex parte ad-interim injunction in the following terms:

"12. Having regard to the facts noted above, at this stage, the Court considers it appropriate to grant limited relief to the Plaintiff. Till the next date of bearing, the Defendants, the directors, executive partners, proprietors as the case may be, are restrained from using the trade mark 'EVENING MOMENTS' in respect of any other product, except for whiskey that is already being manufactured by the Defendant."

5. However, the Defendants have not entered appearance as is clear from the order dated 1st October, 2021 passed by the Joint Registrar. The Joint Registrar has perused the entire records and various other reports and has arrived at a conclusion that both the Defendants have been served through email on 23rd September, 2021.

6. Mr. Bakhru, Id. Counsel appearing for the Plaintiff, submits that the Defendants were initially not injuncted qua whisky as the Defendants had claimed that they had been using the mark for five years, in view of the registration which was in their favour. He submits that since inception, more than 7 to 8 hearings have passed, but the Defendants have not entered appearance. He relies on the fact that the word 'MOMENTS' is the essential and dominant feature of the Plaintiffs mark 'MAGIC MOMENTS'. Owing to the large amount of sales of the Plaintiff and the various registration for the word 'MOMENTS' and 'MAGIC MOMENTS', etc., the mark deserves to be protected even qua whisky. Reliance is placed upon the judgments in Shree Nath Heritage Liquor Pvt. Ltd. v. Allied Blenders & Distillers Pvt. Ltd. [2015 SCC OnLine Del 10164] as also in South India Beverages Pvt. Ltd. v. General Mills Marketing Inc. [2014 SCC OnLine Del 1953].

7. A perusal of the record shows that the Plaintiff adopted the word mark 'MAGIC MOMENTS' in the year 1997 and has launched Gin and Vodka products under the trademark 'MAGIC MOMENTS' in the year 2005 and 2006, and has been using the said trade mark extensively, continuously and in an uninterrupted manner. It launched many variants under the umbrella brand 'MAGIC MOMENTS', namely Remix (2008), Verve (2012) and Electra(2015).

8. The Defendants have not appeared in this matter, despite service. The essential feature of the mark 'MAGIC MOMENTS' being 'MOMENTS' has also been protected, vide order dated 12th October, 2020 passed by the Id. Single Judge of this Court in CS (COMM) 441/2020 titled Radico Khaitan Limited v. Vintage Distillers Ltd. The observation of the Id. Single Judge in respect of the adoption of the mark 'VINTAGE MOMENTS' by the Defendant therein, is set out below:

'8. Grievance of the plaintiff in the present suit is to the adoption of the mark 'VINTAGE MOMENTS' by the defendant who has adopted this mark for the identical goods. Defendant has applied for the impugned tradem