Rolex Sa vs Alex Jewellery Pvt Ltd & Ors
2009 Latest Caselaw 1272 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     IA.No.279/2008 in CS(OS) 41/2008


%                                    Date of decision: 9th April, 2009


ROLEX SA                                                    ....... Plaintiff
                             Through: Mr. Sanjay Jain, Sr Advocate with Ms
                                      Pallavi Shroff and Ms Nitika Mangla,
                                      Advocates.

                                    Versus

ALEX JEWELLERY PVT LTD & ORS                              ....... Defendants
                             Through: Mr Chaitanya P Joshi, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?   Yes

2.     To be referred to the reporter or not? Yes

3.     Whether the judgment should be reported
       in the Digest?                                       Yes


RAJIV SAHAI ENDLAW, J.

1. The application of the plaintiff for interim relief restraining the

defendants from dealing in artificial jewellery or in any other product

bearing the trademark /trade name ROLEX or any deceptive

variation thereof is for consideration.

2. The plaintiff is a company incorporated under the laws of

Switzerland and is engaged in the business of manufacture and

distribution of premium quality watches, horological and

chronometric instruments, atomic clocks, chronographs, watch

bands, watch cases, watch chains, watch glasses etc. The plaintiff is

aggrieved by the action of the defendant No.1 carrying on business

at Mumbai of manufacturing, selling, distributing and trading in

artificial jewellery under the mark ROLEX and the actions of the

defendants 2 and 3 carrying on business at Delhi of retailing of the

said artificial jewellery; of these the defendant No.2 is carrying on

business in the name and style of ROLEX Jewellery House.

3. The plaintiff claims adoption of the trade mark ROLEX and the

first registration thereof in Switzerland in 1908. It is further the

case of the plaintiff, that the plaintiff has since then been using the

trademark ROLEX in respect of its distinguished products and

business and has been trading under the said name extensively

across the world; that ROLEX is a coined and distinctive name

having no dictionary meaning; that it is registered in 140 jurisdiction

across the world; that in India also it is registered in class 14

relating to horological and chronometric instruments and watches

and clocks of all types since 1949; that the plaintiff on 24th April,

2001 also got ROLEX in Hindi registered in class 14 with respect,

inter alia, to chains (Jewellery), charms (Jewellery), diamond

earrings, jewel cases of precious metal Jewellery, medallions

(Jewellery), necklaces (Jewellery), ornament (Jewellery), Pearl

(Jewellery) etc. The plaintiff claims having used the trademark

ROLEX in India since 1912 i.e., even prior to the registration thereof

in 1949. It is further pleaded that after achieving excellence in its

aforesaid field in business, the plaintiff has also been associated with

sporting and cultural events and sports persons across the world are

designated as ROLEX Ambassadors. The plaintiff also claims

promoting its business via its website also containing the word

ROLEX. It is the case of the plaintiff that ROLEX is a well known

trade mark as defined under Article 6 bis of the Paris Convention to

which India is a signatory. It is pleaded to have been so held as a

well known trade mark deserving protection against unauthorized

use by various foreign courts.

4. In the plaint it is pleaded that the plaintiff came across the

website of the defendant No.2 sometimes around 15th November,

2007 and when, to its shock, it found that the defendant No.2 had

registered the domain name rolexjewelleryhouse.com. The plaintiff

on investigation claims to have found out that, in fact, it is the

defendant No.1 which is the manufacturer of artificial Jewellery in

the name of ROLEX being retailed by the defendants 2 and 3 at

Delhi. The defendants are stated to using the name/mark ROLEX on

the boxes and packaging of artificial Jewellery. The plaintiff claiming

infringement of its registered trademark, passing off and dilution of

its distinctive value has instituted the suit for permanent injunction

and for damages etc.

5. Upon notice of the suit and the application for interim relief

being issued, the defendants 2 and 3 appeared first and filed their

written statement. It also appears that it was informed by the

counsel for the defendants to the court (though it is not so recorded

in any of the order sheet) that the defendant No.1 was the registered

proprietor of the trademark ROLEX The defendants 2 and 3 in their

written statement also took the said stand. However, in the order

sheet dated 28th May, 2008 it is recorded that the counsel for the

defendants (plaintiff ?) had placed on record a certificate from

Registrar of Trademark showing that the trademark of the defendant

relied upon by the defendants 2 and 3 was cancelled.

6. The defence of the defendants is that:

i. the suit is barred by law of limitation; the plaintiff was aware of

the use of the trademark ROLEX by the defendant No.1 at least

since 2001; that the defendant No.1/its predecessor-in-interest

had on 2nd March, 1995 and 10th June, 1998 applied for

registration of the trademark ROLEX in class 14 in respect of

artificial Jewellery; the said application had been opposed by

the plaintiff vide opposition filed on 10th October, 2003 - that

the suit was instituted in 2008 falsely stating that the plaintiff

became aware of the actions of the defendants impugned in the

suit in November, 2007 only.

ii. that the plaintiff had, by its inaction, allowed the defendants to

develop their business in and around the trademark ROLEX in

respect of artificial Jewellery and are now estopped from

restraining the defendants. The principle of delay/latches and

acquiescence are also invoked. .

iii. that the plaintiff is not engaged in the business of Jewellery in

which the defendants are engaged; the trade channels are

different and there is no possibility of confusion/deception.

iv ROLEX is a common word with over 25 parties having

registrations thereof in their names in different classes for

different goods from the year 1953 onwards. Besides the said

registrations, there are large number of other parties using the

mark ROLEX in respect of different goods; the telephone

directory is stated to be listing 150 such parties.

v. that the registration of the plaintiff of 24th April, 2001 including

with respect to Jewellery was only "proposed to be used" and

had been secured by the plaintiff by making false and

misleading statements; the plaintiff at the time of obtaining the

same in 2001 is required to make a search and is deemed to

have come to know of the use by the defendants of the

trademark ROLEX in relation to jewellery.

vi. the defendant No.1 claims to have adopted the mark ROLEX in

the year 1993 after the name of his son Alex born in the same

year and for the reason of the business then commenced by the

defendant No.1 being of rolled gold Jewellery such adoption is

claimed to be honest, independent, bonafide conceived and

without any knowledge of the mark of the defendant and

without malafide.

vii that the business of the defendant No.1 was having an annual

turnover ranging between 2 to 4 crores and of which 70-80% of

the sales are affected under the trademark ROLEX.

viii the popularity of the artificial Jewellery under the trademark

ROLEX of the defendants is described from attempts by others

to copy the same and with respect whereto complaints were

filed.

ix the defendant has been applying since 1998 for registration of

the trademark.

x. territorial jurisdiction of this court was also controverted

though not pressed at the time of hearing.

xi. it was admitted that ROLEX is not a dictionary word but it was

claimed that it was an uncommon word which could not strike

anybody in ordinary course of business.

7. The oral submissions of the counsel for the defendants in

addition to the above pleas may be succinctly summarized as under:

i. that user prevails over registration - right in trademark is

independent of the right by registration.

ii. that the mark of the plaintiff could not be distinctive when

there were 30 other registrations with respect thereto -the

mark of the plaintiff had got diluted owing to the plaintiff

being not vigilant.

iii. the trademark ROLEX was being used for diverse products as

hosiery, stationary, rubber slippers, hardware, incense sticks,

pharma. When people come across the mark ROLEX with

respect so many goods, there could be no question of the

plaintiff being affected by the user thereof by the defendants

and there could be no question of the defendants attempting

to take any advantage of the mark of the plaintiff.

iv. Sections 33 and 34 of the Trademarks Act, 1999 were stated

to have come into play in the facts of the present case.

v. even otherwise it was argued that there is a huge difference in

the price at which the goods of the plaintiff and the goods of

the defendants were sold and owing to the sale of the

plaintiff's goods from exclusive outlets, there could be no

possibility of any confusion.

vi. the mark of the plaintiff is known only to the affluent

inasmuch as for 40 years there were import restrictions in this

country as a result whereof the plaintiff could not have

acquired any reputation in India.

vii. it was offered that the defendants shall not use the said

trademark for goods other than artificial Jewellery and

defendants also offered to maintain the accounts during the

pendency of the suit, to, in the event of the plaintiff ultimately

succeeding, compensate the plaintiff.

viii. reliance was placed on 1998 PTC 18 Bombay 156 as well as on

the judgment dated 2nd February, 1988 of a Single Bench of

the Bombay High Court setting aside the order of the

Assistant Registrar of Trademark refusing registration of the

trademark consisting of the word ROLEX in respect of "stove,

blow lamps, incandescent lamps, hurricane on opposition by

the plaintiff herein and directing the Assistant Registrar to

register the said mark.

ix. it was also contended that while in the opening arguments it

was stated by the counsel for the plaintiff that the plaintiff was

not relying upon the registration of 2001 and was basing its

case on Section 29(4) of the Act, subsequently, the senior

counsel for the plaintiff had changed the stand.

8. Though the counsel for the defendants has argued that he does

not admit the registration of the year 2001 of the plaintiff including

in relation to Jewellery, but on the basis of the documents filed, there

is, prima facie, evidence of such registration. On the contrary, the

admitted position is that the defendants have no registration. The

argument of the counsel for the defendants of Section 33 is

misconceived. Section 33(1) would have come into play only if the

defendants had registered trademark ROLEX in relation to artificial

Jewellery (and as was contended in the written statement of the

defendants 2 and 3) and if the plaintiff, in spite of knowledge of the

same had acquiesced in use of the said registered trademark by the

defendant for a period of five years. Section 33(1) bars application

for declaration that registration of latter trademark is bad where the

proprietor of earlier trademark has acquiesced for continuous five

years of registered trademark. This proceeding is not for such

declaration. Section 33(2) is limited to cases where Section 33(1)

applies.

9. The plaintiff thus being the registered trademark of ROLEX in

relation to Jewellery would under Section 29 of the Act be entitled to

injunct the defendant from using the same trademark also in relation

to Jewellery. However, the arguments of the counsel for the

defendants of Section 34 coming into play is relevant in this regard.

Section 34 commences with a non obstante clause and is as under:

"34. Saving for vested rights. - Nothing in this Act shall entitle the proprietor or a registered user of registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods, or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior -

(a) to the use of the first-mentioned trade mark in relation to those goods or services be the proprietor or a predecessor in title of his; or

(b) to the date of registration of the first-mentioned trade mark in respect of those goods or services in the name of the proprietor of a predecessor in title of his;

Whichever is the earlier, and the Registrar shall not refuse (on such use being proved), to register the second mentioned trade mark by reason only of the registration of the first mentioned trade mark."

10. On the basis of the above, it follows that the plaintiff inspite of

being a registered proprietor of the trademark ROLEX with respect

to Jewellery would not be entitled to restrain the use by the

defendant of the same trademark in relation to Jewellery if the

defendant has used the trademark ROLEX in relation to Jewellery

since prior to the registration of the plaintiff with respect thereto

i.e., 24th April, 2001. The plaintiff does not claim user since prior to

24th April, 2001 in respect of jewellery, or for that matter, even now.

11. The parties are at issue as to whether the defendants have

used the mark since prior to 24th April, 2001. The defendants have

pleaded so. The defendant No.1 in his written statement and

additional affidavit has said that applications dated 2nd March, 1995

and 10th June, 1998 for registration of ROLEX in respect of jewellery

were filed and to which plaintiff filed opposition. It is pleaded to

have been claimed therein that user is since 1995. However, the

defendants have not filed those documents. The plaintiff has filed

the Registration Certificate earlier issued to defendant No.1,

erroneously and which was cancelled. In the said certificate user

was claimed since 1995. The plaintiff has also not denied the

applications for registration made by defendant No.1 in 1995 and

1998. The defendant No.1 has filed sales invoices, all of which are of

after 24th April, 2001. The defendants 2 and 3 have also not filed any

documents. The date of registration of domain name is also not

given. Presumption is, it is after 24th April, 2001. There is thus

nothing to show user by the defendants of the mark since prior to

registration in favour of plaintiff, except admitted factum of

registration having been applied for. The benefit of Section 34 is

available only by continuous use since prior to user or date of

registration, whichever is earlier, by/of the registered proprietor.

The benefit is not available merely by applying for registration. The

defendants have failed to prima facie bring their case within the

ambit of Section 34.

12. Once Section 34 is out of way, the plaintiff being registered

proprietor in respect of jewellery also, since 24th April, 2001, use by

the defendants of same trademark, in relation to same goods, is

infringement within the meaning of section 29(1).

13. The counsel for the plaintiff had in opening submissions

pitched her case primarily on Section 29(4) of the Act. Trademark,

traditionally is with respect to particular class of goods - there could

be infringement thereof only by use of similar or deceptively similar

mark with respect to same class of goods. Section 29(4) is a major

departure. Thereunder use of similar/deceptively similar mark in

relation to goods which are not similar to those for which the

trademark is registered has been included in the definition of

infringement, if the condition of Section 29(4)(c) are met.

14. The trademark ROLEX has been registered in favour of the

plaintiff with respect to watches etc since much prior to the user

claimed by the defendants from 1995. If the plaintiff satisfies the

test of Section 29(4)(c), the plaintiff even on the basis of its

registrations other than with respect to jewellery, would be entitled

to maintain an action of infringement against defendants with

respect to jewellery. The only question to be determined at this

prima facie stage is whether the registered trademark ROLEX of the

plaintiff, in relation to watches, has a reputation in India and the use

of the mark by the defendants is without due cause and takes unfair

advantage of and/or is detrimental to the distinctive character or

repute of the registered trademark.

15. Section 2(z)(g) defines a well known trademark as the one

which in relation to any goods, means a mark which has become so

to the substantial segment of the public which uses such goods that

the use of such mark in relation to other goods would be likely to be

taken as indicating a connection in the course of trade between

those goods and a person using the mark in relation to the first

mentioned goods. In my view the segment of the public which uses

the watches of the category/price range as the watches of the

plaintiff, ROLEX is a well known trademark. The said segment of the

public if comes across jewellery/artificial jewellery also bearing the

trademark ROLEX is likely to believe that the said jewellery has a

connection to the plaintiff.

16. Yet another provision in the Act, though for the guidance of the

Registrar but in relation to well known trademarks is to be found in

Section 11(6) of the Act. Upon testing the trademark of the plaintiff

on the touchstone of the ingredients of the said provision also, I find

the said trademark of the plaintiff to be satisfying the test of a well

known trademark. The documents filed by the plaintiff i.e., the

advertising done in the media in India since 1947 and particularly in

years immediately preceding the suit, registrations obtained show

that relevant section of the public in India had knowledge of the

trademark ROLEX in relation to the watches. The pleadings of the

plaintiff and which are not contested also show that the plaintiff for

the last nearly one century has been using the said trademark spread

over nearly the entire developed/developing world. The

advertisements of the plaintiff had appeared in the magazines in this

country even when there were import restrictions. The plaintiff has

filed documents to show registration of the trademark in a large

number of countries and also to show successful enforcement of its

rights with respect to the said trademark.

17. The Business Week/Inter Brand Annual Ranking of 2008 of 100

Top Global Brands ranks ROLEX at No.71. To fall in the list, the

criteria is to have brand value in excess of USD one billion, derives

at least a third of its earning outside the home country and have

publicly available marketing and financial data. Once the aforesaid

criterions are met, there is no difficulty in holding that the plaintiff's

registered trademark even in relation to watches has a reputation in

India.

18. This court, even prior to introduction of Section 29(4) in the

1999 Act had in Daimler Benz Aktiegesellschaft Vs Hybo

Hindustan (1994) 14 PTC 287 in relation to another well known

trademark "Benz" held that such names are different from other

names - these are names which have become household words - it

was held that there would hardly be anyone conscious of automobiles

who would not recognize the name "Benz " used in connection with

cars. The defendant in that case was restrained from using the name

"Benz" with reference to underwear. The Senior counsel for the

plaintiff also relied upon

(i) Hamdard National Foundation Vs Abdul Jalil application for interim relief in suit No. 1240/2004 decided on 13th August, 2008 where use of name Hamdard in relation to processing and marketing of rice was injuncted notwithstanding plaintiff till then not dealing in the same and diversity in the goods and considerable delay in bringing the action. It was held that the consumer was likely to believe that the goods of defendant, though dissimilar, originate from the plaintiff.

(ii) General Motors Corpn Vs Yplon SA decided by the court of Justice of European Communities and Premier Brands UK Ltd Vs Typhoon Europe Ltd Fleet Street Reports (2000) 767 on the aspect of deception and dilution respectively.

iii) Order of Assistant Registrar of Trade Marks, Singapore holding that watches have over the years evolved from their traditional function as being merely time keepers to being distinguished as items of fashion/fashion accessories.

iv) Cartier International B.V. Vs Choosy Corner (2003) 26 PTC 160 (Delhi) where the mark cartier was held to have tremendous goodwill and reputation and use thereof in relation to different goods i.e., garments was injuncted.

v) Honda Motors Co Ltd Vs Charanjit Singh (2003) 26 PTC 1 (Del) where mark Honda was held to have a global goodwill and reputation and use thereof in relation to pressure cooker was injuncted on the principles of passing off.

and a number of other judgments, which are discussed in

judgments aforesaid and with which it is not necessary to burden

this order.

19. Though the defendant No.1 has furnished an explanation for

adopting the name/mark ROLEX in relation to its artificial jewellery

but the same is not found convincing by me. The defendant No.1

being a manufacturer in Bombay, having sales of jewellery in Delhi

as well and stated to be enjoying a huge reputation, as argued on the

basis of the three affidavits filed by the defendant No.1 is bound to

have known in 1993 and/or 1995 when it claims to have adopted the

mark ROLEX, of the plaintiff. The defendant No.1 admits that it is

not a dictionary word. I am not convinced even prima facie that

owing to the name of the son of the Director of the defendant No.1

being Alex and further owing to the business being of rolled gold, the

name ROLEX was coined by the defendant. Moreover, the defendant

immediately on applying for registration of the said mark became

aware of the opposition thereto by the plaintiff. Had the intention of

the defendant been bona fide, the defendant upon facing such

opposition to its application for registration, would have then

immediately promoted its business under some other name.

However, the defendant, in spite of such opposition, has persisted in

using the mark. The defendant having done so, cannot take

advantage of having since then expanded its business or earned a

reputation. The use by the defendant of the mark is found to be

without due cause and in an attempt to take unfair advantage of the

reputation and goodwill of the plaintiff.

20. Over the years and very quickly in recent times, the

international boundaries are disappearing. With the advent of the

internet in the last over ten years it cannot now be said that a

trademark which is very well known elsewhere would not be well

known here. The test of a well known trademark in Section 2(zg) is

qua the segment of the public which uses such goods. In my view

any one in India, into buying expensive watches, knows of ROLEX

watches and ROLEX has a reputation in India. Not only so, to satisfy

the needs/demands of consumers in different countries, the well

known international brands which were earlier available at prices

equivalent to prices in country of origin and which owing to the

exchange rate conversion were very high, have adapted to the Indian

situation and lowered prices. A large number have set up

manufacturing facilities here and taken out several variants. Thus,

merely because today the price of a ROLEX watch may be much

higher than the price of items of jewellery of the defendants as

argued, cannot come in the way of the consumer still believing that

the jewellery is from the house of the plaintiff. Also, there can be no

ceiling to the price at which the defendants will continue to sell their

jewellery. The defendants have claimed to be selling rolled gold

jewellery; with the price of gold soaring, there is no certainty that

the pieces of artificial jewellery of the defendants would not also be

in the same range as the watches of the plaintiff. Even otherwise,

the trend in modern times has been towards artificial /semi precious

jewellery. In fact, the attraction to gold is confined to this part of the

world only. In India also today there are several brands of artificial

jewellery/semi precious jewellery whose brand value and/or prices

are quite comparable to the gold jewellery of the conventional gold

smiths.

21. The plaintiff has in reply to the additional affidavit of the

defendant stated that jewellery and watches are allied/cognate, more

so since both are items of adornment and are typically sold to

customers through common trade channels of retail, etc. The

affidavit on behalf of the plaintiff also cites TITAN, HARRY,

WINSTON, SEIKO and CHOPARD which though originally engaged

in the business of watches have ventured into jewellery or vice versa.

Even otherwise, in my view watches/clocks have ceased to be an

item merely for knowing the time or a utility or a necessity. A large

cross section of the population is today carrying on their person cell

phones all the time. The cell phone invariably shows the time also.

The need, if any, of the watch/clock for knowing the time is thus met.

However, the watches continue to be marketed and sold. The reason

being that over the years the watches have acquired a status as

enjoyed by the jewellery. The watches are worn and clocks adorn

the houses as a symbol of status. The watch/clock has

metamorphosed from a simple instrument comprising of two

needles/heads in a metallic case to intricate designs/shapes and

which can besides on the wrist be worn as a locket, arm band and

designer watches. This is quite evident from the advertising of

watches and clocks. Today the stress in marketing/advertising

thereof is more on its looks and ornamental value rather on its

machinery. Gone are the days when before procuring a watch its

longevity was enquired. Today watches are increasingly being used

as a gift/novelty/ souvenir. The purpose for which jewellery is worn

is being met by watches also. In fact, watches are one of the few

pieces of jewellery available to the male, half of the population. In

the city of Delhi also, many expensive brands of watches are sold

through retail outlets of jewellers. The jewellers incorporate a watch

in designs of their jewellery

22. The next aspect to be considered is the effect/impact, if any, of

a large number of other persons using the word ROLEX as claimed

by the defendant. At this stage, this plea will be examined believing

the same to be true. In my view, the same would be immaterial.

Firstly, nothing has been shown that any of the said users has any

significant presence. Secondly, it is now well settled in Honda

(supra) in turn relying upon Indian Shaving Products Ltd Vs Gift

Pack that merely because the plaintiff who is otherwise found

entitled to the interim injunction is shown to have not taken any step

against other infringers is no ground to deny relief to the plaintiff. It

cannot also be said that the plaintiff's trademark has lost its

distinctiveness for the said reason. The reply affidavit of the plaintiff

lists the orders of the Trade Mark Registry from 1964 to 2000, where

plaintiff's mark has been protected inter alia for reason of having

great reputation. It also shows that the plaintiff has been enforcing

its rights. Though the list filed by defendant No.1 in this regard is

long but a perusal thereof shows a number of applicants to have

abandoned or withdrawn their applications. This is a vast country.

Mere long list of applicants/registrants of mark, without any

extensive use of the mark, cannot dent the distinctive character or

repute of the mark.

23. I therefore find a case of infringement of the trademark of the

plaintiff having been made within the meaning of Section 29(4) also

of the Act. Even independently of that, on the principles laid down in

Daimler Benz (supra) and in Honda Motors, I find the case of

passing off also to be made out.

24. The goods of the plaintiff may lose their sheen to the strata of

the society for which they are intended if such strata finds the goods

in the same brand name even though not from the house of the

plaintiff being available for a much lower price. The goods of the

plaintiff would then cease to be a status symbol or a fashion

statement. Undoubtedly, the same would be to the detriment of the

plaintiff. Having found a prima facie case in favour of the plaintiff

and irreparable injury to be caused to the plaintiff by allowing the

defendant to continue using the trademark, I also find the element of

balance of convenience to be satisfied in the present case. The

registration of the mark of the plaintiff is over 90 years prior to the

claimed commencement of the use by the defendant. Even if the

defendant, at the time of commencing the use, did not know of the

inherent risk in adopting the well known trade mark, the defendant,

at least, immediately on applying for registration and on opposition

being filed by the plaintiff became aware of the perils in such use.

Thus, use by the defendant of the mark is for short time only and use

during the period of opposition is of no avail. The mark has got no

relation to the jewellery being marketed by the defendants. Unless

the defendant is deriving any advantage of the goodwill /brand value

of the plaintiff and which it is not entitled to, it ought not to make

any difference in the business of the defendants if the said jewellery

is sold under a mark other than ROLEX.

25. With respect to arguments of the defendants of the claim being

barred by time, infringement is a continuing cause of action and the

defence of Limitation Act is not available. Similarly, there can be no

estoppel against the statute. With respect to latches, acquiescence

and waiver, such defence is available only when some positive act of

encouragement is shown on the part of the plaintiff. Not only no such

positive act shown in the present case but the opposition filed by the

plaintiff to the application for registration of the defendant ought to

have warned the plaintiff that the plaintiff is not allowing the

defendant to use the mark. The case of infringement having been

made out, the said pleas have no meaning. As aforesaid nothing to

show any sales by defendant under the mark ROLEX, for prior to

2002 has been filed. Since then, the opposition is pending. The said

period cannot be relied upon by the defendant for pleading

acquiescence and waiver.

26. For the reasons aforesaid, the defendant No.2 is also not

entitled to the use of domain name www.rolexjewelleryhouse.com.

27. The application of the plaintiff is therefore entitled to be

allowed. However, since the defendant may need some time to

rearrange its affairs, the restraint order in terms of prayers (a) and

(b) in the prayer paragraph of the application shall come into

operation w.e.f. 30 days of this order. The question of costs shall be

considered at the time of decision of the suit. Needless to state,

nothing contained herein shall come in the way of final adjudication

of the suit.

RAJIV SAHAI ENDLAW (JUDGE) April 09, 2009 M