JUDGEMENT

JYOTI SINGH, J.

I.A. 2712/2022 (under Order XXXIX Rules 1 and 2 CPC, by Plaintiff) I.A. 4044/2022 (under Order XXXIX Rule 4 read with Section 151 CPC, by Defendants)

1. This judgment will dispose of the application filed by the Plaintiff under Order 39 Rules 1 and 2, CPC, 1908 as well as an application filed under Order 39 Rule 4, CPC filed by the Defendants.

2. Present suit has been filed by the Plaintiff seeking permanent injunction restraining the Defendants and all others acting for or on their behalf from using, manufacturing, selling, offering for sale, exporting, importing, distributing, advertising directly or indirectly dealing in alcoholic beverages, especially, country spirits and Indian Made Foreign Liquor (IMFL) under the impugned mark or any identical/deceptively similar mark to that of Plaintiff’s trademarks ‘Officer’s Choice’, ‘Officer’s Choice Blue’ and ‘Choice’ amounting to trademark infringement, passing off, dilution and tarnishment as well as for delivery up, damages and rendition of accounts of profits with costs.

3. On 17.02.2022, Court granted ex-parte ad interim injunction against the Defendants restraining them from using, manufacturing, selling, etc., alcoholic beverages, especially, country spirits and IMFL under the impugned trademark ‘Green Choice’ (label) (hereinafter referred to as “Green Choice”) or any other mark, identical/ deceptively similar mark to Plaintiff’s trademarks ‘Officer’s Choice’, ‘Officer’s Choice Blue’ and ‘Choice’. Subsequently, an application was filed on behalf of the Defendants under Order 39 Rule 4 CPC, seeking vacation of the ex-parte injunction order. Pleadings being complete in both the applications, they were taken up together for hearing.

4. The expose of facts, as set out in the plaint is that:-

(a) Plaintiff is in the business of manufacturing and marketing alcoholic beverages including IMFL, sold under distinctive trademarks OFFICER’S CHOICE, OFFICER’S CHOICE BLUE, CLASS VODKA, STERLING RESERVE, etc. and labels such as , , , , , , and .

(b) The Officer’s Choice trademark was coined and adopted in the year 1988 by predecessor in rights, title and interest of the Plaintiff and was assigned to the Plaintiff along with the goodwill of the business by way of Deed of Assignment dated 26.02.1991. By virtue of a demerger, transfer and vesting of the liquor business of M/s BDA Pvt. Ltd. with Allied Blenders and Distillers Pvt. Ltd. under a Composite Scheme of Arrangement approved by the Bombay High Court on 23.02.2007, Plaintiff became the proprietor of the trademark ‘Officer’s Choice’ in several classes. In 2011, Plaintiff expanded into ‘Officer’s Choice Blue’ and very recently into ‘Officer’s Choice Black’.

(c) Over the years, Officer’s Choice is one of the largest selling whiskies in the world and the trademark has been declared as a well-known trademark in M/s. Allied Blenders and Distillers Pvt. Ltd. vs. Surya Rao Trading as Leo Foods & Beverages, CS(COMM) 1227/2016 vide order dated 16.01.2017 under Section 2(1)(zg) of the Trade Marks Act, 1999 (hereinafter referred to as the ‘1999 Act’). The products are sold under unique and distinctive labels and packaging. Trademark Officer’s Choice has been used continuously, extensively, consistently and exclusively by Plaintiff’s predecessors from the year 1988 and subsequently by the Plaintiff. The goods bearing the aforesaid marks are sold across the country and have acquired an impeccable and formidable reputation and goodwill and by virtue of excellent quality, Plaintiff’s whisky has become extremely popular among the trade and public.

(d) New York based ‘Impact International’ and IWSR have rated Officer’s Choice as the largest selling Indian Spirit Brand with a growth of 29.2% in 2012-13, as reported by IWSR. Whisky sold under Officer’s Choice Blue trademark has crossed one million cases sales mark within a few years of its National launch.

(e) Plaintiff has registrations for the trademarks Officer’s Choice in Classes 3, 3