IMPORTANT POINT
Failure to contest a case can lead to deemed admissions of all facts mentioned in the plaint, and evidence presented by the Plaintiffs can satisfy the test required to prove infringement.

JUDGMENT

Sanjeev Narula, J. (Oral)

1. The Plaintiffs, owners of the trademark "HERO", "" "", have filed the present suit seeking various remedies including permanent injunction restraining Defendants from selling counterfeit `Hero genuine 4t plus motorcycle engine oil', which bear the Plaintiffs' marks and identical packaging.

2. Defendants No. 2-4 were served through newspaper publication on 22nd March, 2023 and Defendants No. 5-11 through courier. Despite being served with summons in the suit and being restrained by an ex-parte ad-interim injunction order on 2nd September,2022, the Defendants have failed to contest the present proceedings. The time to file their written statement has also since expired, as recorded in orders dated 23rd March 2023 and 11th August, 2023.

3. The matter is now before the Court for final disposal.

The Plaintiffs' Case

4. The Plaintiff Nos.1 and 2 are `Group Companies' carrying on their business under the house mark "HERO". The trademark "HERO" is also used as label and device marks "" "" [Collectively referred to as "HERO marks"]. They are engaged in the business of manufacturing and selling of various automative products and services under the trademark HERO. One such product of the Plaintiffs is the `Hero genuine 4t plus motorcycle engine oil' [hereinafter, "HERO Oil"] which is designed to cater to modern driving behaviour and road conditions in India. It is averred that HERO Oil's superior quality results from extensive research by the Plaintiffs, and their unique elements, sets HERO oil apart, making it distinct and superior to others.

5.  The Plaintiffs have spent considerable amount of money towards promoting and popularizing the products/services under the HERO Marks. The annual sales and advertisement figures pertaining to Plaintiffs' HERO oil for the past few years are as follows:

6. The Plaintiffs have also received various accolades for their products under the HERO marks as delineated in paragraph 21 of the Plaint.

7. Plaintiff No.1 is the registered proprietor of trademark "HERO" and its variants. The specifics of Plaintiff No.1's trademark registrations are as follows:

8. Additionally, Plaintiff No.1 has filed trademark application bearing No. 5074884 for the mark "HERO GENUINE OIL" on 05.08.2021 in class 4. The current status of the application, as reflected on the Trademarks Registry portal, is `accepted and advertised.'

9. Plaintiffs are the owners of the original artistic work as defined in Section 2(c) of the Copyright Act 1957, subsisting in the HERO marks, featuring distinctive and imaginative styles, depicted as under:

a.

b.

Furthermore, the Plaintiffs are also the proprietor of Copyright in original artistic work on the packaging and labels of the Plaintiffs' HERO oil comprising of distinctive arrangement of features, get-up, artwork and layout, which are represented as under:

10. Plaintiff No. 2 is the registered proprietor of the unique shape of the bottle, which is the subject matter of the suit, under design registration Nos. 311300 and 311301 in classes 09 and 01 respectively.

11. In August, 2022, the Plaintiffs' learned of the Defendants' sale of counterfeit HERO oil. As per the Plaintiffs' information, Defendants No.2 and 3 are the manufacturer and distributor of counterfeit HERO Oil respectively. Defendants No. 4 -11, who are wholesalers, are engaged in the sale of counterfeit HERO oil.

Proceedings till date

12. At the preliminary stage, on 2nd September 2022, the Court granted an ad interim ex parte injunction restraining Defendants from infringing upon, the Plaintiffs' registered HERO marks or any other identical/deceptively similar marks, as well as, infringement of Plaintiffs' Copyright in HERO device marks and label. Furthermore, 7 Local Commissioners were appointed to visit the premises of the Defendants to seize and inventorize the infringing goods.

13. During the execution of the Commission, the Local Commissioners, recovered infringing goods, details whereof are as follows: