Trademark registered users have rights against similar marks when prior use and reputation are established, and deliberate infringement can lead to damages awarded.

JUDGMENT

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

I.A. 9196/2021(u/O XXXIX Rule 2A CPC)

2. The present application has been filed by the Plaintiff on the ground that the Defendant has not complied with the injunction order dated 16th February, 2021 passed by the ld. Single Judge of this Court. The brief background of the case is that the Plaintiff had instituted the present suit seeking protection of its trademark `G-STAR' which was adopted by it in 1989 for various apparel, including jeans, tops and other clothing, as well as a diverse line of luxury accessories, etc. The Plaintiff had also opened its store in India in July 2015. The Plaintiff was earlier using the mark `GAPSTAR' earlier and switched to `G-STAR' IN 1994. The mark `GSTAR' is also registered in favour of the Plaintiff in India under various classes.

3. In June 2020, the Defendant was found to be using `GS STAR' for apparel and has also filed an application dated 21st November, 2018 before the trademark registry bearing no.4003995 for the registration of the same for the same class of products as that of the Plaintiff on a `proposed to be used' basis. The products of the Defendant were also found to be advertised and promoted on www.indiamart.com and www.justdial.com. It was in this background that this Court had granted an interim injunction on 16th February, 2021 in the following terms:

"12. Considering the averments in the plaint and the documents filed, the plaintiff has made out a prima facie case in its favour and in case, no ex-parte ad- interim injunction is granted, the plaintiff would suffer an irreparable loss. The balance of convenience also lies in favour of the plaintiff and against the defendant.

13. Consequently, till the next date of hearing, the defendant, his partners, agents, servants, distributors and any other persons acting for and on behalf of the defendant are restrained from using in the course of trade the mark 'GS STAR' including in any stylized representations, and from selling, offering for sale, manufacturing, advertising, importing, exporting, or in any manner commercially dealing in any goods, whether offline or online, bearing the impugned mark or any other mark identical or deceptively similar to plaintiff's 'G-STAR' trade marks amounting to infringement of the plaintiff's registered trade marks.

14. Compliance under Order XXXIX Rule 3 CPC be done within one week."

4. A Local Commissioner was appointed on 16th August, 2021 as the Defendant was not complying with the above injunction order. The Commission was since executed, but the Local Commissioner could not find any products with the mark `GS STAR' in the premises of the Defendant. The Defendant was shown to have used the new board by the name `Higher Fields Way 2 Journey' for its apparels. Photographs were placed on record by the Local Commissioner of the apparels and the board with the name `Higher Fields Way 2 Journey'. However, in the present application, the contention of the Plaintiff is that the Defendant has not been complying with the injunction order dated 16th February, 2021. The said application is based on the affidavit of an independent investigator-Nripendra Kashyap, who visited the Defendant's premises in June, 2021. The investigator's affidavit shows the followings:

i. Listings on www.indiamart.com and www.justdial.com of the Defendant being continued.

ii. Photographs of the Defendant's premises along with the products, labels and tags bearing the mark `GS STAR'.

5. The Court has perused the application under Order XXXIX Rule 2A CPC and the report of the Local Commissioner. It is noticed by the Court th