• ' .

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ ;CS(CO]\^>724/2018 .
: RADICOKHAITANLTD. .....Plaintiff
Through: Mr. Sagar Chandra, Advocate with ' ,
. Ms. Ishani Chandra, Mr. Ankit Rastogi
and Mr. Srijah Uppal, Advocates.

: ; • . ; versus • ' ' . . ;

M/SDEVANS MODERN BREWERIES LTD. .....Defendant

• Through: None. ' *

•• CORAM::,. • '
HON'BLE MR: JUSTICE MANMOHAN

ORDER
% 13.03.2018

I.A.No.3485/2018 in CS(COMMV724/2018
Keeping in view the avermente in the application, plaintiff is
exempted from filing' the priginals/clear/typed/translated/vemacular copies
of documents, at this stage. - i
Needless to say, this order is vv^ithout prejudice to, the rights and
contentions of the,parties. ~^ ;
Accordingly, present application stands disposed of.
LA. 3484/2018 in CS(CQMM1 724/2018

Keeping in view the averments- in the application, the plaintiff,

permitted to file additional documents within thirty days.
^ Needless to say, this order is without prejudice to the rights ;and
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contentions of the parties.

Accordingly, present application stands disposed of
CS(COMM) 724/2018

Let the plaint be registered as a suit.

Issue summons in the suit to the defendant by all modes including
dasti, returnable for 09^*^ May, 2018 before the Joint Registrar for completion
of service and pleadings.
The summons to the defendant shall indicate that a written statement

to the plaint shall be positively filed within four weeks of the receipt of the
summons. Liberty is given to the plaintiff to file a replication within two
weeks of the receipt of the advance copy of the written statement.
The parties shall file all original documents in support of their
respective claims along with their respective pleadings. In case parties are
placing reliance on a document which is not in their power and possession,
its detail and source shall be mentioned in the list of reliance which shall be

also filed with the pleadings.

Admission/denial of documents shall be filed on affidavit by the
parties within two weeks of the completion of the pleadings. The affidavit
shall include the list of the documents of the other party. The deponent shall
indicate its position with regard to the, documents against the particulars of
each do,cument. ' '

List the matter before Court on 1July, 2018.

I.A.3483/2018 in CSrCOMM) 724/2018

Issue notice to defendant by all modes including dasti, returnable for

09"^ May, 2018 before the Joint Registrar.
It is pertinent to mention that the present suit has been filed for
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permanent injunction restraining infringement of trademark, passing off,

delivery up, rendition of accounts, damages etc. against the defendant.
In the plaint, it is stated that the plaintiff is one of India's largest
liquor companies, having fourteen state-of-the-art bottling lines, a
distribution system of over 400 wholesalers who cater to above 95% of the
retail outlets all over India and has arrangements with at least 32 bottling
units, out of which 5 are self owned. It is stated that the plaintiff has four
millionaire brands - '8 PM', Whisky, Contessa Rum, Old Admiral and
Magic Moments'Vodka, selling more than a million cases per annum.
It is stated that the plaintiff adopted1;he mark ELECTRA for Vodka in
September, 2004, and in 2005, launched Vodka under the mark 'MAGIC
MOMENTS. It is further stated that in 2014, the plaintiff decided to use the
mark ELECTRA for Ready to Drink alcoholic beverages in Ready To Drink
bottles,' and in June 2015, officially launched its Ready to Drink product
under the aforesaid mark combined with its flagship brand MAGIC
MOMENTS.

It is stated that the plaintiff is the registered owner of the word mark
ELECTRA and various marks/labels having ELECTRA as their prominent
feature in Class 33 of the Trade Marks Act, 1999 since 23'''' December,
2004. It is averred in the plaint that the trademark ELECTRA has come to
be associated exclusively with the plaintiff in respect of alcoholic beverages.
It is stated that the plaintiff promotes its products bearing the mark
ELECTRA in India through permitted channels, and also promotes its
products bearing the mark ELECTRA on, its own websites
www.radicokhaitan.com and www.m2electra.com, as well on it's Official
Facebook and Twitter pages 'm2electra'. The plaintiff has also launched
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ELECTRA CDs and digital game, 'Electrathon'

It is the case of the plaintiff, that the annual revenue generated by the
plaintiff from the sale of its products under the mark ELECTRA in the
financial year 2016-17 was INK 2015.03 lakhs.
Learned counsel for the plaintiff states that, in November, 2016, while
conducting a regular search on the website of the Trade Marks Registry, the
plaintiff came across the defendant's Trademark Application dated 25'^
April, 2013, for the mark ELECTRA under Class 32 for goods 'Beers,
mineral and aerated waters, and other non-alcoholic drinks; fruits drinks and
fruit juices; syrups and other preparations for making beverages' which was
filed on a Proposed to be Used'basis.
He states that the plaintiff sent a legal notice dated 02"'' November,
2016 to the defendant. The plaintiff received a reply dated 17^*^ November,
2016, which denied the contentions of the plaintiff and sought for labels
which the plaintiff was using since 2004 as well as plaintiffs Trade Mark
Registration Certificates. In the reply, the defendant also stated that it had
been using the mark ELECTRA along with its trademark GODFATHER
LABEL. Learned counsel for plainfiff states that although all the requested
documents, were forwarded to the defendant's counsel, no response was
received. Learned counsel for the plaintiff states that the plaintiff addressed
two reminder notices to the defendant, dated 03'"'' February, 2017 and
May, 2017, but no response has been received till date.
Learned counsel for the plaintiff states that in October, 2017, the
defendant filed a suit for declaration to hold groundless threats as
unjustifiable and for permanent injunction under Section 142 of Trade
Marks Act 1999, restraining defendant (plaintiff herein) from interfering in
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the business activities of the plaintiff (defendant herein) and damages

against the plaintiff titled 'M/s Devans Modem Breweries Ltd. Vs. M/s
Radico Khaitan Ltd' before the District Court of Saket and the same is listed
on 14''^ March, 2018.
Learned counsel for the plaintiff states that in January, 2018, it came
to the plaintiffs knowledge that the defendant intends to launch its products
in Delhi and Silvassa by April, 2018. He states that on 23"^ February, 2018,
the defendant obtained an Excise Approval for selling products under the
mark ELEGTRA in the territory of Delhi
Learned counsel for the plaintiff states that the defendant is using an
identical trademark ELECTRA for similar goods and that use of the same is
likely to cause confusion in the minds of the consumer and indicate that the
goods of the defendant originate from the plaintiff.
Learned counsel for the plaintiff states that the use of -the mark
GODFATHER along with ELEGTRA is irrelevant as the defendant is using
an identical mark ELEGTRA for Beer, which is allied and cognate to the
plaintiffs Ready to Drink Pre-Mixed Vodka drink sold under the mark /

ELEGTRA. He states Beer and Ready to Drink Pre-Mixed Vodka drinks are
available through identical trade channels and sold to an identical class of
consumers.
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The Supreme Court in the cslsq ofMidas Hygiene Industries P. Ltd.

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&Anr. vs. Sudhir Bhatia <&. Ors., 2004 (28) PTC121 (SC) has held that in
case of infringement of trademark normally an injunction must follow and
that delay is not fatal in bringing infringing action.
Keeping in view the aforesaid, this Court ,is of the opinion that a
primafacie case of infringement and passing off is made out in favour of the
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plaintiff and balance of convenience is also in its favour. Further, irreparable

harm or injury would be caused to the plaintiff if an interim injunction order
is not passed.
Consequently, till further orders, the defendants, their partners,
proprietors, companies, sister concerns, directors, executives, as the case
may be, its officers, servants and agents or anyone acting for and on their
behalf are restrained in Delhi from manufacturing, exporting, marketing, |
offering for sale;, selling, advertising or in any manner dealing with any
alcoholic beverages including Beer under the trademark ELECTRA or from \
adopting any other mark or label which is identical or deceptively similar to
the plaintiff s registered trademark ELECTRA, in any manner whatsoever.
Let the provisions of Order 39 Rule 3 CPC be complied within a
period of two weeks.
Order dasti under the signature of Court Master.

MANMOHAN, J
MARCH 13, 2018
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