The mark 'POWER' was held to be exclusively associated with the Plaintiff's brand of footwear, and its use by Defendant No.2 violated Plaintiff's statutory and common law rights. The court also considered the delay in taking action and the distinction between different types of footwear.

Prathiba M. Singh, J.

I.A. 3051/2019 (u/Order XXXIX Rules 1 and 2 CPC) and I.A. 3686/2019 (u/Order XXXIX Rule 4 CPC)

1. The present order disposes of two applications being under Order XXXIX Rule 1 and 2 CPC and under Order XXXIX Rule 4 CPC.

2. The Plaintiff - Bata India Limited (hereinafter "Plaintiff") has filed the present suit seeking an injunction restraining infringement of trademark, passing off, unfair competition, damages, etc. The facts as essential for the present order are narrated below.

Plaintiff's case

3. The Plaintiff is a well-known manufacturer and seller of footwear. It was incorporated in 1931 in the name of its predecessor - Bata Shoe Company Private Limited. In the year 1973, it became a Public Limited Company, and changed its name to M/S Bata India Ltd. It adopted the mark 'POWER' for footwear in the early 1970s and the same has been in continuous use for almost 50 years. The 'POWER' brand is registered in favour of the Plaintiff, both in word form and logo form and as a combination with other marks. The 'POWER' range of footwear of "BATA" have been promoted by well-known sporting personalities such as Mr. Kapil Dev, Mr. Sachin Tendulkar and Ms. Smriti Mandana (Player of Indian National Women's Cricket Team). The sales figures of the footwear under the mark 'POWER" for the last ten years have been mentioned in paragraph 11 of the plaint. In the year 2018, the annual sales of "POWER" branded shoes has been over Rs.480 crores and the publicity expenses are in the range of Rs.77 crores. The sales for the last decade itself show that 'POWER' branded footwear of more than Rs.2500 crores has been sold in India and the expenses on publicity are nearly Rs.300 crores for the last decade.

4. The claim of the Plaintiff is that it came across a trademark application filed by Defendant No.2 - Leayan Global Pvt. Ltd. (hereinafter, "Defendant No.2") for the mark 'POWER FLEX' in respect of footwear. The same was opposed by the Plaintiff. When Defendant No.2 filed its evidence in support of the opposition, it contained invoices and some advertisements, which showed that Defendant No.2 was using the mark 'POWER FLEX'. Further, the Plaintiff also came across an application for the tagline 'THE POWER OF REAL LEATHER', which was also opposed. Since Defendant No.2 claimed actual use of the mark, the Plaintiff claims to have obtained a sample of the Defendant No.2's product and filed the present suit. The allegation of the Plaintiff is that the Defendant No.2's use of the mark 'POWER FLEX' and 'THE POWER OF REAL LEATHER' is a violation of its statutory and common law rights.

5. When the suit was listed before this Court on 27th February, 2019, the following order was passed:

"I.A. 3051/2019 (u/O XXXIX Rules 1 and 2 CPC)

8. The Plaintiff - Bata India Limited has filed the present suit seeking injunction restraining infringement of registered trademark and passing off, damages and delivery up in respect of its trademark "POWER" used for footwear and other allied products. The case of the Plaintiff is that it adopted the mark "POWER" in 1971 for footwear and has since been using the same exclusively and extensively. The sales and advertising figures for the mark have been placed in para 11, which shows that the sales in the last calendar year was approximately Rs.480 crores. The mark "POWER" has been used extensively by the Plaintiff, who has several brand ambassadors who have promoted the mark.

9. The grievance of the Plaintiff in the present suit is that the Defendants have adopted the mark "POWER FLEX" and the slogan "THE POWER OF REAL LEATHER" for footwear. It is submitted that the Plaintiff owns several registrations for the mark "POWER" both in logo and in word form as also in various derivatives, the oldest of these dating back to 1988. Accordingly, Mr. Neeraj Grover, Ld. counsel appearing for the Plaintiff submits tha