South African Breweries ... vs Mohan Goldwater Breweries Ltd. & ...
2011 Latest Caselaw 5237 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%           Judgment Reserved on:   21st October, 2011
            Judgment Pronounced on: 31st October, 2011

+      CS(OS) 1073/2002, IAs No. 5631/2002 (O. 39 R.
       1&2 CPC) and 10566/2002 (O.11 R 12&14)


SOUTH AFRICAN BREWERIES INTERNATIONAL
(FINANCE) B.V. AND ANR.
                                        ..... Plaintiffs
                Through: Mr Saif Khan, Adv.


            versus


MOHAN GOLDWATER BREWERIES LTD. & ANR....
                                 Defendants
            Through: None.


CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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 Yes in Digest?

V.K. JAIN, J

1. This is a suit for permanent injunction, rendition

of accounts, damages and delivery up of the infringing

packaging and material. Plaintiff No. 1 is a company

registered in Netherlands, whereas plaintiff No. 2 is a

company registered in India and is a joint venture company,

promoted by SAB Group, to which plaintiff No. 1-company

belongs. The trademark CASTLE, which was originally

adopted and used by Charles Glass, doing business as

Glass & Company in respect of beer, in the year 1884. In

1895, Glass & Company was taken over by the South

African Breweries Limited, which assigned worldwide rights

in the trademark CASTLE to Avalon International

Incorporate, which subsequently changed its name to

SABMARK International Incorporated. Subsequently,

SABMARK International assigned those rights to South

African Breweries International Holdings Inc., which, in

turn, assigned them to plaintiff No. 1- Company. Plaintiff

No. 1 claims registration of the trademark CASTLE and

CASTLE label in respect of beer in a large number of

countries mentioned in para 6 of the plaint and also claims

sale of US$ 1billion. According to the plaintiffs, the

trademark CASTLE is a well-known mark in India and is

well-recognized worldwide on account of its extensive

availability in various countries and duty free shop of

various airports. Plaintiff No. 1 also claims to be sponsoring

the South African Cricket team for past 10 years and claims

that on account of such wide publicity, Indians would be

familiar with the trademark CASTLE. It is also alleged that

the plaintiffs have been selling beer in India since 1974,

under the trademark CASTLE. Plaintiff No. 1 applied for

registration of CASTLE (label) on 29th April, 1995 and the

word mark CASTLE on 6th February, 1996. The

registrations have since been granted during pendency of

the suit.

2. A notice dated 15th April, 2002 was sent by the

defendants to the plaintiff claiming ownership of the

trademark CASTLE PILSNER in respect of beer. They also

claimed that the trademark OLD CASTLE and CASTLE were

registered in their favour on 30th May, 1972 and 22nd

October, 1973 respectively and also claimed that the

plaintiffs were passing off their goods as those originating

from the defendants and, thereby infringing their registered

trademark. On enquiry, the plaintiffs came to know that the

trademark registrations in favour of the defendants had

been removed from the record of Registrar of Trademarks

and in fact, the defendants never sold any product bearing

the trademark CASTLE. The plaintiffs have sought an

injunction, restraining the defendants from manufacturing,

selling, offering for sale or advertising any beer or alcoholic

beverages, using the trademark CASTLE. They also sought

delivery up of all the goods, packaging material bearing the

impugned mark besides damages of Rs 20,00,000/-.

3. The defendants filed written statement contesting

the suit. In its written statement, defendant No. 1 took a

preliminary objection that since it was carrying on business

of manufacture and sale of beer under the trademark

CASTLE only in Uttar Pradesh, Delhi Court has no

jurisdiction to try the present suit. It is alleged that

CASTLE is one of the oldest brands being used by defendant

No. 1 to sell its beer and it has been selling bear using the

trademarks CASTLE and OLD CASTLE since 1970-71. It is

also alleged that registration of the trademark OLD CASTLE

(label) was granted to defendant No. 1 on 30 th May, 1972

vide Trade Mark No.280552, whereas registration of the

trademark CASTLE PILSNER STRONG BEER label was

granted w.e.f 22nd October, 1973, vide Trade Mark

Registration No. 291623. It is also alleged that the renewal

of the aforesaid trademarks was applied by defendant No. 1

on 13th June, 2000 and 17th May, 2000 respectively. It is

also claimed that since the trademark CASTLE is being used

by defendant No. 1, the plaintiffs have no right to use the

aforesaid mark.

4. The matter between the plaintiff and defendant

No.2 was compromised vide settlement contained in IA No.

4700/2010. Under the settlement, the plaintiff

acknowledged defendant No. 2 to be the proprietor of the

trademark KING CASTLE in respect of whisky, whereas

defendant No. 2 acknowledged the plaintiffs to be the

proprietors of the trademark CASTLE in respect of beer and

other non-alcoholic beverages falling under International

Class 32 of the Trademarks Act. Defendant No. 2 undertook

not to use the trademark CASTLE in respect of beer or any

other goods falling in Class 32 of the Trademarks Act. It also

undertook not to seek registration of the trademark CASTLE

for any goods falling in Class 32 of Trademarks Act.

5. Since there was no appearance on behalf of

defendant No. 1, it was proceeded ex parte on 17 th February,

2011.

6. The plaintiffs have filed the affidavit of its

Authorized Signatory Mr Gobind Chandiramani by way of ex

parte evidence. In his affidavit, Mr Gobind Chandiramani

has supported, on oath, the case setup in the plaint and

has stated that the trademark CASTLE was widely

recognized as originating from the plaintiffs and plaintiff No.

1 has been selling CASTLE beer bottles and cans in India

even before entering into a joint agreement to manufacture

beer in India. According to him, plaintiff No. 1 has been

spending considerable amount on promotion and publicity

of the mark CASTLE for many years and the mark is well-

known in India on account of sponsorship of various sports,

primarily cricket, which has vast viewership in the country.

7. The first question which arises for consideration in

this case is as to whether this Court has territorial

jurisdiction to try the present suit or not. Defendant No.1 is

a Company having offices in Lucknow as well as in Delhi.

Delhi office of defendant No.1 is stated to be 4F, Hansalya,

15, Barakhamba Road, New Delhi. Section 20 of the Code

of Civil Procedure to the extent it is relevant provides that

every suit shall be instituted in a Court within the local

limits of whose jurisdiction, the defendant, at the time of the

commencement of the suit, actually and voluntarily resides,

or carries on business, or personally works for gain or in a

Court within local limits of whose jurisdiction, the cause of

action, wholly or in part, arises. The explanation to Section

20 provides that a corporation shall be deemed to carry on

its business at its sole or principal office in India or in

respect of any cause of action arising at any place where it

has also a subordinate office, at such place. Therefore, if

the cause of action either wholly or in part arose in the

jurisdiction of this Court, it would have territorial

jurisdiction to try the present suit.

8. As regards territorial jurisdiction, the plaintiff has

alleged as under:-

"This Hon‟ble Court has jurisdiction to entertain the present suit as Defendant No.2 is situated within the territorial jurisdiction of this Hon‟ble Court. Further the products of the defendants are sold within the territorial jurisdiction of this Hon‟ble Court."

9. In its written statement, defendant No.1 has

claimed that it has no office in Delhi and is carrying on

business of manufacture and sale of beer being sold in Uttar

Pradesh, not being sold at Delhi. In replication to the

written statement of defendant No.1, the plaintiff has

alleged that defendant No.1 is carrying on business in Delhi

and its products are available in Delhi. It is also alleged

that the cause of action also arose in the territorial

jurisdiction of this Court as the trade mark applications of

the defendants were published in the Trade Mark Journal

which is circulated in Delhi.

10. The onus was on the plaintiffs to prove that

defendant No.1 has been selling its product in Delhi. No

evidence, however, has been led by the plaintiffs to prove

sale of the products of defendant No.1 in Delhi. Thus, the

plaintiff has failed to prove that defendant No.1 is actually

selling its product in Delhi.

11. The plaintiff has filed, on 06.09.2011, copies of the

advertisements of the products of defendant No.1 in the

Trade Mark Journal at Delhi and it is contended by the

learned counsel for the plaintiff that since the registration of

the impugned trademarks was applied for in Delhi, this

Court does have territorial jurisdiction to try the present

suit. In support of his contention, learned counsel for the

plaintiff has relied upon Jawahar Engineering Company

and Others versus Jawahar Engineers Private Limited,

(1983) PTC 207 and Pfizer Products Inc. versus Rajesh

Chopra, 2006(32) PT 30. In the case of Jawahar

Engineering (supra), a preliminary issue was framed as

regards territorial jurisdiction of the Court to try the suit.

The defendants in that suit had applied for registration of

the trade mark „Jawahar‟ in Delhi and the application was

advertised in Trade Mark Journal. On evidence, it was

found that there was no sale of the products of the

defendants in Delhi and the defendants had not advertised

their products in Delhi. There was an advertisement of the

products of the defendant in Journal published in

Ludhiana. The learned Single Judge of this Court held that

the advertisement was not sufficient to confer jurisdiction

on the Courts in Delhi. He, however, held that since there

had been an advertisement in the Trade Marks Journals

published at Delhi that conferred jurisdiction on the Courts

at Delhi. The Division Bench held that the real point which

gave Delhi Court jurisdiction was the fact that the trade

mark was sought for sale in Delhi, amongst other places.

The Division Bench was of the view that when an injunction

is sought, it is not necessary that the threat should have

become the reality before the injunction and it can even be

sought for a threat, which is yet to materialize. It was

further held that since the plaintiffs had learnt that the

defendants had applied for registration of trade mark in

Delhi, they could claim for injunction to prevent any sale of

the infringing products in Delhi and in that case, Delhi

Courts would have jurisdiction, whether any sale in Delhi

has taken place or not.

This issue again came to be considered by this

Court in the case of Pfizer Product Inc.(supra), where the

Court considered the decision of Dhodha House & Patel

Field Marshal Industries versus S.K.Maingi & P.M.

Diesel Ltd. : 2006(32) PTC 1. This Court was of the view

that the decision in Jawahar Engineering (supra), was not

disapproved by Supreme Court in Dhodha House (supra).

In taking this view, this Court took note of the fact that in

the case of Dhodha House (supra), Supreme Court had

noted that that no application had been filed for

registration of the trade mark whereas in the case of

P.M.Diesels, the parties were residents of Rajkot and the

application for registration had been field in Bombay. This

Court, therefore, concluded that this was not the ratio of

Supreme Court decision in Dhodha House (supra) that the

filing of an application with the Registrar of Trade Marks, at

a particular place would not clothe the courts at that place

with territorial jurisdiction to entertain the matter. The

ratio of the Supreme Court decision in Dhodha House

(supra), in the opinion of this Court was that an

advertisement by itself in a Trade Mark Journal would not

confer jurisdiction on a Court within whose territorial limit

the advertisement is published or is seen. In the opinion of

this Court, if an application for registration of the impugned

trade mark is made in the territorial jurisdiction of a Court

that Court would have jurisdiction to try the suit relating to

the particular trade mark. Since defendant No.1 applied for

registration of the trade mark to the Registrar of Trade

Marks at Delhi, as is evident from the advertisements, this

Court would have jurisdiction to try the present suit.

12. In Mars Incorporated vs. Kumar Krishna

Mukerjee & Ors. 2003 (26) PTC 60 (Del), the defendant

sought to incorporate a company named MARS FOODS PVT

LTD, though mark was the registered trademark of the

plaintiff company. The question which came up for

consideration before this Court was as to whether a person

who has not suffered any damage in respect of trade either

due to competition or due to deceptive or confusing

similarities of the trademark adopted by the defendant has

any right to challenge the act of the defendant in seeking to

incorporate a company under a name which included the

name of the registered trademark of the plaintiff company.

The defendant in that case had been incorporated as a

company but had not commenced operations by

manufacture of sale of goods. Upholding the right of the

plaintiff to maintain cause of action on account of

apprehension of infringement of its trademark, this Court

inter alia observed as under:-

To expect the aggrieved party to wait and watch for the opening of business or manufacturing or sale of goods under the apprehended infringement of trade mark is too much. A stitch in time always saves nine and that is what is the essence of Quia Timet Action...

...Let us assume that infringer has no past history of either squatting or hoarding the domain name, trade name and comes out with advertisement for the first time for registering its Corporate name by adopting the similar name or deceptively or confusingly similar name without immediate intention to start its business. Whether or not the plaintiff whose name is sought to be infringed has a remedy to forestall the defendant from adopting its name or from opening up of the business under the plaintiff‟s trade name. the answer in any eventuality is in affirmative.

The plaintiff has the same degree of right to protect its trade name from infringement as it has against infringement of registered name or in an action of passing off in respect of manufacturing or selling or offering to sell the goods by the defendants

under the plaintiff‟s trade name. The genesis is the underneath intention which is not difficult to fathom. Why one should choose or pick up the name or mark which has already become famous and well known and whose reputation and goodwill is all pervading and is obviously hard earned. The only intention or object is to thrive upon the goodwill and reputation and confuse the purchasers of his goods into believing that the defendants‟ goods or business in one way or other is connected with the plaintiff. Obvious object is to cash on exploit the goodwill, reputation, name and trade mark of the plaintiff...

...It is immaterial whether or not there is a real or tangible possibility of starting a business. Such a threat will even loom large over the head of the plaintiff and therefore entitle him to resort to Quia Timet Action as the intentions are bad, designs are dubious. There is no other object of such a defendant than to hoard the trade mark and black mail the plaintiff in order to use it in future. Thus, in both the cases, the action and proposed activities are manifestly mala fide and calculated to deceive the public or would be purchasers as to the connection of the defendants with the plaintiff.

As the saying goes, the evil should be nipped in the bud so is the nature of Quia Timet Action where the injury or damage has been caused.

In KRBL Limited vs. Ramesh Bansal & Anr. 2009

(41) PTC 114 (Del), the plaintiff was registered proprietor of

the trademark/label "India Gate", which it was using for

selling rice. The defendant applied for registration of the

same mark in respect of salt. The right of the plaintiff to

maintain a quia timet action was upheld by this Court.

13. Moreover, admittedly, defendant No.1 sent a legal

notice dated 15.04.2002 to the plaintiffs, claiming

registration of the trade mark Castle and old Castle and

alleged that the plaintiff had adopted deceptively similar

trade mark, with dishonest intention of making illegal

profits. Defendant No.1 alleged infringement of its trade

mark as well as passing off by the plaintiff and called it

upon to cease and desist from selling, offering for sale,

displaying and advertising deceptively similar trade mark

Castle Beer and also sought an unconditional undertaking

not to use the mark in future. It also threatened to take

legal action against the plaintiffs in case it did not comply

with the notice. Section 142 of the Trade Mark Act, to the

extent it is relevant provides that where a person, by means

of circulars, advertisements or otherwise threatens a person

with an action or proceeding for infringement of a trade

mark which is registered, or alleged by first-mentioned

person to be registered, or with some other like proceeding,

a person aggrieved may, whether the person making the

threats is or is not the registered proprietor or the registered

user of the trade mark, bring a suit against the

first -mentioned person and may obtain a declaration to the

effect that the thefts are unjustifiable, and an injunction

against the continuance of the threats and may recover

such damages (if any) as he has sustained, unless the first-

mentioned person satisfies the Court that the trade mark is

registered and that the acts in respect of which the

proceedings were threatened, constitute, or, if done, would

constitute, an infringement of the trade mark.

14. Since, in its letter dated 15.04.2002, defendant

No.1 claimed to be registered proprietor of the trade marks

CASTLE and OLD CASTLE, alleged that the plaintiff was

infringing its trademarks and the adoption of the mark

CASTLE by it also amount to passing off, and also

threatened to initiate legal proceedings against the plaintiff

company, issue of that notice gave a cause of action to the

plaintiffs, under Section 142 of the Trade Marks Act to file a

suit seeking a declaration that the threats given to it by

defendant No.1 were unjustified and also seek an injunction

against continuance of those threats. Since the notice was

received also at 12, Basant Lok, Basant Vihar, New Delhi, in

the territorial jurisdiction of this Court, this Court would

have territorial jurisdiction to try the present suit against

defendant No.1.

In Exphar SA & Anr. v. Eupharma Laboratories

Ltd. & Anr. AIR 2004 SC 1682, a „cease and desist‟ notice

was given to the plaintiff at its office in New Delhi alleging

infringement of the copyright of defendant No.1 by the

plaintiff. Supreme Court held that a „cease and desist‟

notice in a copyright action cannot, particularly in view of

Section 60 of the Act, be termed as a mere notice which is

not sufficient to confer jurisdiction and that such a threat

may give rise to a right to institute a suit but counter such

threat and ask for relief on the ground that the alleged

infringement to which the threat related was in fact an

infringement of any legal right of the person making such

threat. Section 60 of the Copyright Act is identical to

Section 142 of the Trademarks Act and therefore this

judgment does support the proposition that if a „cease and

desist‟ notice is received at Delhi, the Courts would have

jurisdiction to entertain a suit at the instance of the person

to whom such a notice is given.

15. Coming to the merits of the case, it has come in

the affidavit of Mr. Gobind Chandiramani, Authorized

Signatory of plaintiff No.1, that the registration of trade

marks in favour of defendant No.1, vide registration Nos.

280552 and 291623 had been removed from the trade mark

register. The relevant extract from Trade Mark Journals

notifying removal of these trademarks was advertised are

Ex.PW-1/12 & PW-1/13. A perusal of the advertisement

Ex.PW-1/12 in Trade Mark Journal dated 01.01.1992 would

show that registered mark No.280552 was removed from the

register for non-payment of renewal fee from 01.11.1991 to

16.11.1991. 280552 is the registration whereby the trade

mark OLD CASTLE was registered in the name of defendant

No.1. Ex.PW-1/13 is the copy of Trade Mark Journal dated

16.01.1991 whereby removal of registration No.291623 from

the register, for non-payment of renewal fee, was advertised.

291623 is the registration number whereby the trademark

CASTLE was registered in the name of defendant No.1.

There is no evidence of the Registrar of Trade Marks having

actually renewed the registration of the aforesaid trade

marks at any point of time after their removal from the

register of trademarks was advertised in Trade Mark

Journal. Defendant No.1 has no come forward to contest

the suit. More importantly, there is no evidence that

registration of the trademarks CASTLE and OLD CASTLE in

the name of defendant No.1 subsisted on the date of filing of

this suit and thereafter. Therefore, it must necessarily be

held that defendant No.1 is no more the registered

proprietor of the trademarks CASTLE and OLD CASTLE the

registrations of the aforesaid marks in its favour having

already been removed from the register of trade marks on

account of non-payment of the requisite fee.

16. It has come in the affidavit of Shri Gobind

Chandiramani that the mark CASTLE is well-known in India

in respect of high quality beer since the plaintiff - company

has been sponsoring various sports including cricket which

has vast viewership in India. Ex.PW-1/9 is the magazine

„Sportstar‟ dated March 23, 2002 showing the trade mark

CASTLE on the uniform South African Cricket team. It has

also come in his affidavit that plaintiff No.1 has been

spending a sizeable amount of money in promotion and

publicity of the mark CASTLE and has been sponsoring

South African Cricket team for many years. According to

Mr. Gobind Chandiramani, plaintiff No.1 had been selling

huge numbers of CASTLE beer and bottles even before, it

entered into a joint agreement to manufacture beer in India.

17. At the time of filing of this suit, the trademark

CASTLE was not registered in the name of the plaintiffs and

the suit of the plaintiffs is based on passing off.

18. As observed by Supreme Court in Wander Limited

versus Antox India Private Limited 1990(Suppl.)SCC 727,

in a passing off action, the right of the plaintiff is against

the against the conduct of the defendant which leads to or

is intended or calculated to lead to deception. Passing-off is

said to be a species of unfair trade competition or of

actionable unfair trading by which one person, through

deception, attempts to obtain an economic benefit of the

reputation which another has established for himself in a

particular trade or business. The action is regarded as an

action for deceit. The tort of passing-off involves a

misrepresentation made by a trader to his prospective

customers calculated to injure, as a reasonably foreseeable

consequence, the business or goodwill of another which

actually or probably, causes damages to the business or

good of the other trader.

19. The plaintiff before this Court has been selling beer

under the trade mark CASTLE. The affidavit of Mr. Gobind

Chandiramani, authorized signatory of plaintiff No.1, would

show that the plaintiffs have been exporting beer to India

since 1994. The figures of direct sale by the plaintiffs in

India have been given in para 05 of the affidavit of Mr.

Chandiramani. According to him it is not possible to

estimate the correct import figures of CASTLE beer cans and

non-refillable bottles since they were being imported

through numerous importers who were purchasing them

from different distributors. He, however, has given some

figures of import of CASTLE beer by three traders viz. M/s

MB Bond Stores, M/s RR International and M/s Hind

Traders. The figures would show that M/s MB Bond Stores

imported CASTLE beer in the years 1995, 1996 and 1999

whereas M/s RR International imported beer in the year

1999 and M/s Hind Traders imported it in the year 2000.

Since February, 2002, the plaintiffs started manufacturing

beer in India. The figures of sales between February 2002

and Mid May 2002, when this suit was instituted, have been

given in para 7 of affidavit of Mr. Gobind Chandiramani.

This is also the case of the plaintiff that despite registration

of trademarks CASTLE and OLD CASTLE in its favour,

defendant No.1 has actually not used these trademarks. It

has come in the affidavit of Mr. Chandiramani that to the

best knowledge of plaintiffs, defendant No.1 never sold the

products bearing the trademark CASTLE and appeared to

have applied for its registration only to block the entry of the

plaintiffs to the Indian market, which is also substantiated

by the fact that the registrations were not renewed and

therefore were removed from the Register of trademarks.

Since, defendant No.1 inspite of registrations in its favour

did not use those marks whereas the plaintiffs have been

selling beer in India through Indian importers since the year

1994, it is the plaintiffs which are the first users of the

trademark CASTLE, in India, in respect of beer. Defendant

No.1 therefore has no right to use the trademarks OLD

CASTLE and CASTLE and thereby pass off its goods as

those of the plaintiffs‟. If defendant No.1 starts selling beer

in India using the trademark CASTLE/OLD CASTLE, the

customer particularly if he is an unwary customer who does

not bother to read the name of manufacturer on the

bottle/Can of the beer, may purchase the product of

defendant No.1 under a mistaken belief that he was

purchasing the product of plaintiff - company. In fact most

of the customers of products such as beer would ask for the

product by its trade name/trademark and would not bother

to find out who the manufacturer of the product is.

Therefore, there is a strong probability of the customer

getting confused on seeing the beer of defendant No.1 which

may be sold under the trademark CASTLE and end up

buying that product under a bona fide impression that the

product was manufactured by the plaintiff company or had

some kind of association or affiliation with the plaintiff

company. If the quality of the product which defendant

No.1, may sell and which the customer buys on the

assumption that it was a product of the plaintiff company,

is not as good as the quality of the product of the plaintiff,

the customer may form an impression that the quality of the

product of the company has gone down and is no more as

good as it used to be earlier. If it happens, it may affect the

reputation and brand equity which the trade mark and

product of the plaintiff company enjoys in the mark besides

adversely affecting its financial interest on account of

reduction in sale of its products. In fact an unscrupulous

trader, engaged in selling product of defendant No.1 may

deliberately pass off product of defendant No.1 as that of the

plaintiff, in case he is getting a higher trade margin on the

product of defendant No.1. This will be detrimental not only

to the interest of the plaintiff company but also to the

interest of the customer who wants to buy the quality

product, manufactured by the plaintiff company.

20. Since it is the plaintiff company which first used

the trademark CASTLE in India and the registrations in

favour of defendant No.1 have already been cancelled,

defendant No.1 Company has no right to use this mark and

thereby pass off its goods as that of the plaintiff. As regards

the trade mark OLD CASTLE, since this mark includes the

whole of the trademark of the plaintiff company, the

customer coming across beer being sold under the trade

mark OLD CASTLE may buy this product assuming, on

account of use of the word CASTLE, it to be a product of the

plaintiff company. He may, on seeing a bottle/Can of beer

bearing the trade mark OLD CASTLE genuinely believe that

either this product has been manufactured by the plaintiff

company or it is being manufactured under licence or in

collaboration with it, and that is why the word CASTLE has

been used as a part of the trademark under which the

product is being sold.

Injunction can be sought not only in a case of

actual use but also in a case of threatened use of a

trademark. The owner of a trademark is well within his

right in coming to the Court, for grant of an injunction, the

moment he has a genuine apprehension that the defendant

is likely to infringe his mark or to pass off his goods as

those of the plaintiff. He need not necessarily wait till actual

invasion of his rights and the law entitles him to take

remedial action, well in time, whenever there is a reasonable

threat of his right being invaded. In the case before this

Court, the plaintiff did have a valid cause of action to seek

injunction since the defendants themselves gave a cease

and desist notice to the plaintiff, with respect to use of the

mark CASTLE.

21. For the reasons given in the preceding paragraphs,

a decree for permanent injunction is passed restraining

defendant No.1 from selling, distributing or marketing beer

under the trademark CASTLE and/or OLD CASTLE.

However, considering the fact that this is plaintiffs‟ own

case that no beer has ever been sold by defendant No.1

under the trade name CASTLE/OLD CASTLE, I do not deem

it appropriate to award any damages to the plaintiffs. In the

facts and circumstances of the case, there shall be no

orders as to cost.

(V.K. JAIN) JUDGE OCTOBER 31, 2011 BG/'sn'