The exclusive right granted by valid trademark registrations under the Trade Marks Act, 1999, and the establishment of goodwill and reputation were crucial in determining the infringement and passing off claims.

JUDGMENT

Sanjeev Narula, J. (Oral)--Plaintiff, a company engaged inter alia in the field of water purification systems, is registered proprietor of trademark "AquaSure" (or AquaSure in conjunction with addendum words) under several classes including but not limited to Class 32 of the Trade Marks Act, 1999.

2. Plaintiff is aggrieved by Defendant's manufacturing and marketing of packaged drinking water with the brand name 'AquaSure', 'AQUASURE', 'AQUA SURE' and seeks permanent and mandatory injunction restraining infringement of Plaintiff's registered trademarks and copyright, and passing off, apart from rendition of accounts, damages, delivery-up, and compensation among other ancillary reliefs.

DESCRIPTION OF PARTIES

3. Plaintiff' is a specialist in various water technologies in the field of water purification systems, including, but not limited to Ultra Violet (UV) and Reverse Osmosis (RO), sold under the brand names 'Aquaguard', 'AquaSure' and 'Forbes'. Plaintiff is a market leader across India and accounts for more than 70% market share in the water purification segment and operates across 135 cities in India while having further expanded into 1515 towns and 400 smaller towns through Franchise Direct Operations (FDO) with 13,425 dealers. Plaintiff's goodwill and reputation of its name and products has been achieved over the course of the last four decades. On account of its long, continuous and extensive use, the public as well as members of the trade identify and associate the mark 'AquaSure' exclusively with Plaintiff's products.

4. Plaintiff and its fully owned subsidiary companies have been granted registration of trademark 'AquaSure' (or AquaSure in conjunction with addendum words) [hereinafter "AquaSure Marks"] under several classes which are renewed periodically in favour of Plaintiff. Details of trademark registrations are provided at page 9 of the plaint. Plaintiff also has copyright registrations which are enumerated at page 11 of the plaint.

5. Registration of afore-said trademarks and copyrights gives Plaintiff the exclusive right to use, apply, produce and sell products with all said subsisting trademarks and copyrights, and no one else. Plaintiff has generated wide publicity for its brands, 'Aquaguard', 'Forbes', 'AquaSure' which now hold considerable reputation and goodwill in the market. Plaintiff has been bearing substantial expenditure towards advertisement costs on a year on year basis, evidencing consistent efforts being put forth to continuously enhance the goodwill and reputation of its marks and products. Details of spends in advertising and promotional expenses on Plaintiff's products are provided at page 14 of the plaint, which totaled to Rs.19,91,71,121 in 2008-2009 across mediums of print and TV/radio.

6. Defendant has its head office at B-18/7, Butibori, MIDC, Nagpur, Maharashtra-440 108 [hereinafter `Defendant's premises'] and is engaged in the manufacturing and marketing of packaged drinking water. Defendant had filed an application for registration of a device mark '[IMG]' containing the word 'AquaSure' under Class 32 and is using the brand names 'AquaSure' and 'AquaSureTM'.

INTERIM ORDERS & LOCAL COMMISSIONER'S REPORT

7. Ex-parte ad-interim injunction was granted in favour of Plaintiff on 27th August, 2010, in the following terms:

"...the defendant, its proprietors, directors, distributors, dealers, advertisers, agents, stockists, representatives, successors-in-business, assigns or anyone claiming through or under them are hereby restrained from using the mark "AquaSure", "Aqua Sure", "AQUASURE", "Aquasure" and/or any other mark or label, which is identical/deceptively similar to the plaintiff's trademark "AquaSure", till the next date of hearing."

8. Vide afore-said order, a Local Commissioner was appointed, who visited the Defendant's premises and filed a report on 18th September, 2010 recording that infringing goods bearing Plaintiff's mark `AquaSure' were found at Defendant's premises.