Infringing activities and lack of defense by the Defendant can lead to the award of damages and costs in favor of the Plaintiff.

JUDGMENT

Sanjeev Narula, J. (Oral)--Plaintiff seeks inter alia a decree of permanent injunction restraining the Defendant from infringing and passing off Plaintiff's registered trademarks "POWER" and "[IMG]" [hereinafter "subject marks"].

The Plaintiff's case

2. Plaintiff was originally incorporated in India as Bata Shoe Company Private Limited in the year 1931. Thereafter, in 1973, it was transformed in to a Public Limited Company and was rechristened as Bata India Limited. Plaintiff is also part of the global Bata Shoe Organisation and claims to be the largest retailer and leading manufacturer of footwear in India, with numerous factories and manufacturing units as well as approximately 1400 retail stores operating in India. Their factory at Batanagar is India's first shoe manufacturing unit to receive the ISO 9001 certification in the year 1993.

3. During the course of their business in early 1970's, Plaintiff adopted the subject marks, which were used independently as well as in conjunction with each other. The plaint, at paragraph No. 9, sets out registration details of subject marks in respect of various goods and services. Plaintiff has generated over Rs.480 crores from the sale of products under the subject marks, with expenditure on publicity ranging to around Rs.77 crores in 2018. Subject marks have also been promoted by well-known sporting personalities such as Mr. Kapil Dev, Mr. Sachin Tendulkar and Ms. Smriti Mandhana.

4. Plaintiff claims that by virtue of the several multi-class registrations of subject marks subsisting under their name, unauthorised adoption or use of any other mark confusingly or deceptively similar thereto would amount to infringement of Plaintiff's registered trademarks and is thus liable to be restrained under the provisions of the Trade Marks Act, 1999.

Cause of Action

5. In January 2020, Plaintiff contends that it became aware of sale of duplicate footwear under its registered marks - "POWER" and "<[IMG]" in some weekly markets of Delhi, such as the Friday market in R.K. Puram, New Delhi. Thereafter, Plaintiff conducted market enquiries which revealed that Defendants were dealing in counterfeit goods, which either bore the Plaintiff's registered marks or "PAWER" mark [hereinafter, "impugned mark"], giving an impression that said goods were manufactured by Plaintiff. Their representatives procured samples of infringing goods from such markets and on further enquiry as to the source of such goods, they learnt about Defendant - M/s DVS Shoe Factory, which was manufacturing and selling the counterfeit products in the market, and also through websites like www.indiamart.com. Noticing this, Plaintiff's representatives placed an order from Defendant's shop for twelve pieces of footwear under the impugned mark. The copies of invoices proving the sale have also been placed on record.

6. In above circumstances, Plaintiff seeks protection of its statutory and common law rights asserting that Defendant's adoption of the impugned mark depicts a malafide intention to mislead the public, and take advantage of Plaintiff's goodwill.

Proceedings in the suit

7. On 19th February, 2020, finding the competing marks to be visually, phonetically and structurally identical, an ex-parte ad-interim injunction was granted in favour of Plaintiff and against Defendant, restraining Defendant from manufacturing, selling, offering for sale or otherwise dealing in goods bearing the subject marks or the impugned mark "PAWER" or any other mark identical or deceptively similar to the subject marks.

8. Vide the same order, the Court also appointed a Local Commissioner to visit the premises of the Defendant. The Local Commissioner executed the commission on 03rd March, 2020,^{1[It appears that inadvertently, Local Commissioner's report mentions 03rd February, 2020, the same was executed on 03rd March, 2020 (as per `On The Spot Proceedings').]} and seized the infringing products, which were released to Defendant on superdari. T