IA No. 7530/04 (under Sec. 151, CPC for condonation of delay in filing the written statement/reply)

Mukul Mudgal, J.

This application is allowed on account of the reasons given therein and the delay in filing the written statement/reply stands condoned.

IA stands disposed of.

I.A. No. 6325/04:

1. This application filed by the plaintiff under Order XXXIX Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (in short the CPC) seeks interim relief restraining the defendant from using the trademark ABSOLUTE or ABSOLUT or any other mark similarly deceptive with respect to mineral water, packaged drinking water, aerated water or any other goods whatsoever.

2. The sum and substance of the plaintiffs case is that it markets the alcoholic beverage Vodka by the name of ABSOLUT which word according to the plaintiff was coined in the year 1879. According to the plaintiff, its mark ABSOLUT is used outside Sweden since 1979 and thereafter became a worldwide product. Since 1998 the ABSOLUT Vodka has been selling in this country, i.e., India in the duty free shops and in November, 2003 ABSOLUT Vodka was also marketed in the Indian open market attracting media attention. The ABSOLUT mark is registered in India on 16th May, 1986 in Class 33. It is also submitted that in many countries the plaintiffs mark ABSOLUT was registered for mineral water and aerated water. The plaintiff has moved an application for registration of its mark ABSOLUT in India in class 32. The plaintiff has pleaded a large market presence, trans border reputation and identification of its goods with the mark ABSOLUT. By this application for ex-parte ad-interim injunction, a relief has been sought against the defendant for marketing club soda and packaged drinking water bearing the trademark ABSOLUT.

3. The sum and substance of the plaintiffs case is that not only its mark ABSOLUT holds very good and indeed worldwide and trans-border reputation but the submission is that by using the mark ABSOLUT in respect of cognate goods, the defendant is violating the established rights of the plaintiff.

4. The case of the defendant is that the mark employed by it is not ABSOLUT but Kullu Valley Mineral Water Absolute, of which absolute is only a part. The whole mark is KVMW ABSOLUTE and ABSOLUT is only a small part thereof. It is submitted that the defendant is marketing mineral water registered in Class 32 and are not beverages and hence the plaintiff who markets beverages is not entitled to interim injunction as prayed for in the injunction application.

5. The defendant has applied for registration of its mark KVMW ABSOLUTE in January, 2003. I have perused the rival marks in question. Upon a perusal of the two rival products in question, it is evident that the letters KVMW ABSOLUTE are printed in about 1/4th size of the ABSOLUTE printed in respect of the club soda and packaged drinking water. Thus the word absolute figures prominently and KVMW figures in an insignificant manner and size, contrary to assertions of the Counsel for the defendant.

6. A prima facie visual perusal of the product of the defendant demonstrates its logo Kullu Valley Mineral Water Absolute. This appears to bear a logo KVMW at the top left hand corner and the words ABSOLUT are written in much larger, bigger and prominent letters. Thus the plea of the defendant prima facie that its mark was not ABSOLUT but Kullu Valley Mineral Water Absoluteand ABSOLUT was only a part of the KVMW does not seem to be bona fide upon a visual perusal of the defendants product, said to be impugned in the plaintiffs mark.

7. Mr. Suman Kapur, the learned Counsel, appearing on behalf of the defendant has vehemently contended that the mineral water and drinking water are not beverages and hence the defendant cannot be estopped from using the mark Kullu Valley Mineral Water Absolute. He also submitted that the registration of the plaintiff is only in respect of beverages and secondly the plaintiffs product is alcoholic in nature and the defendants product is non-alcoholic. In my view the concept of the Intellectual Property Rights cannot be constructed pedantically. If an association of the parties products especially in respect of the cognate products is evident from the products of the defendant, then the mere plea that product falls within another class cannot be availed of.

8. Mr. Nayyar, the learned Senior Counsel, appearing on behalf of the plaintiff has relied upon the Paras 15 and 43 of the judgment of the Division Bench of thisCourt in N.R. Dongrev.Whirlpool Corp., reported as III (1996) CLT 293 (SC)=1996 PTC (16) 476 which read as follows:

15. The knowledge and awareness of a trade mark in respect of the goods of a trader is not necessarily restricted only to the people of the country where such goods are freely available but the knowledge and awareness of the same reaches even the shores of those countries where the goods have not been marketed. When a product is launched and hits the market in one country, the cognizance of the same is also taken by the people in countries almost at the same time by getting acquainted with it through advertisements in newspapers, magazines, television, video films, cinema, etc. even though there may not be availability of the product in those countries because of import restrictions or other factors. In todays world it cannot be said that a product and the trade mark under which it is sold abroad, does not have a reputation or goodwill in countries where it is not available. The knowledge and awareness of it and its critical evaluation and appraisal travels beyond the confines of the geographical area in which it is sold. This has been made possible by development of communication systems which transmit and disseminate the information as soon as it is sent or beamed from one place to another. Satellite Television is a major contributor of the information explosion. Dissemination of knowledge of a trade mark in respect of a product through advertisement in media amounts to use of the trade mark whether or not the advertisement is coupled with the actual existence of the product in the market.

43. Having regard to the above discussion, the following position emerges. The Courts do not approve of any attempt by one trader to appropriate the mark of another trader, even though that trader may be a foreign trader and mostly uses his mark in respect of the goods available abroad i.e. outside the country where the appropriation of the mark has taken place. As mentioned earlier, awareness and knowledge of the mark in the latter country may be because of small trickle of goods in that country or through advertisement. The manner and method by which the knowledge of the mark is acquired by the public is of no consequence and will not matter. Applying this principle and the reasons already stated we have prima facie come to the conclusion that the appellants have acquired reputation and goodwill in respect of goods bearing trade mark WHIRLPOOL in this country. Even though the appellants have no connection with the respondents, they are using the mark WHIRLPOOL for their products. Prima facie it appears to us that buyers are likely to be deceived or confused as to the origin and source of the goods. They will believe that the product is manufactured by the respondents, an impression not founded in truth. The imitation will pass off as genuine. No one can be permitted to trade by deceiving or misleading the purchasers or to unauthorisedly divert to itself the reputation and goodwill of others. Under Section 27(2) an action for passing off against registered user of trade mark is maintainable at the instance of a prior user of the same, similar or identical mark. Since such a remedy is available against the registered user of a trade mark, an interim injunction restraining him to use the mark can also be granted to make the remedy effective.

9. It is not in dispute that the alcoholic beverages are consumed not only on their own but also consumed alongwith soda and/or water. The above position of law in respect of transborder reputation and the likely confusion and/or deception as to the origin of the defendants products applies squarely to the facts of the present case in light of the prominence of the word absolute on the defendants product. I am also of the view that the word absolut in the context of the plaintiffs mark has been prima facie shown to have acquired a secondary meaning.

10. In this view of the matter and considering the fact that the word ABSOLUT figures prominently as the mark in the defendants products displayed in Court and that the plaintiffs offer of monetary compensation and time to change label to the defendant was spurned by the defendant, I am left with no other option but to injunct the use of the mark ABSOLUTE or ABSOLUT or any other mark similarly deceptive with respect to mineral water, and club soda. This order will come into force with effect from 6th December, 2004. However considering the fact that the defendant is producing goods found to be violative of plaintiffs right for about 2 years, it will be appropriate that the defendant is given about three months time to dispose of its existing stocks/goods bearing the mark `ABSOLUTE. Accordingly the defendant may dispose of its packaged drinking water and club soda, bearing the mark `ABSOLUTE on or before 31st March, 2005.

11. IA stands allowed and disposed of accordingly.

CS(OS) No. 1044/04:

List the matter on 17th March, 2005.