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19. Hence the court held that where the products are different, prior owner's chance of success is a function of many variables; the strength of his mark, the degree of similarities between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion , etc. etc. All variables have to be taken into account. Based on the above the court on the facts of that case concluded that visual appearance of the two marks is different and they relate to different products. Further, the manner in which they are treated by the appellant and the respondent respectively the court concluded that it was difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent. Clearly, in the facts of that case the court came to a conclusion that an average man of ordinary intelligence would not associate the goods of the appellant as that of the respondent. In my opinion, the facts of the present case are materially different. The strength of the trademark of the plaintiff cannot be disputed. The plaintiff is manufacturing motorcycles under the mark BMW since 1923 and motor cars since 1928, under the said mark. It has assembly plants in 14 countries and a global sales network in more than 140 countries. The plaintiff and affiliated companies have a work force nearly of 1,25,000. In 2016, it had a revenue of 94.163 million Euros. In 2016, 23,67,600 vehicles were sold worldwide by the plaintiff of which two million vehicles were cars with the brand BMW mark. In these circumstances, the use of the mark DMW by the defendant prima CS(COMM.)292/2017 Page 15 facie appears to be a dishonest act with an intention of trying to take advantage of the reputation and goodwill of the brand of the plaintiff. It is likely to mislead an average man of ordinary intelligence.

23. It is manifest from the facts narrated above that the brand of the defendant is visually and phonetically similar to the mark of the plaintiff. Further, the plaintiff's mark is a well known trademark and use of the aforesaid mark by the defendant on its product constitutes infringement within the meaning of Section 29(4) of the Trademarks Act. The defendant is obviously seeking to encash upon the brand quality and goodwill which the mark BMW enjoys in the market. Such use by the defendant is detrimental to the reputation of the registered mark BMW of the plaintiff company. The defendant is prima facie guilty of infringement of the trade mark of the petitioner.

Hence, even if there was delay on the part of the plaintiff in filing of the present suit as has been claimed by the defendant, the same delay would not be sufficient to deter grant of injunction in favor of plaintiff.

27. The plaintiffs have made out a prima facie case. Balance of convenience is in favour of the plaintiff and against the defendant. An ad interim injunction is passed restraining the defendants, its officers, agents etc. from manufacturing, exporting, importing or offering for sale, advertising or in any manner dealing with goods not limited to E-Rickshaws CS(COMM.)292/2017 Page 19 bearing the mark DMW or any other mark which are identical or deceptively similar to the plaintiff's BMW marks.