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vi) Whether the defendants are entitled for recovery of damages @ Rs.25,00,000/- as claimed by them?
vii) Whether the Trial Court committed any error in dismissing the suits filed by both the parties?
viii) To what relief?

23. Before proceeding to answer the points for consideration, the undisputed facts are that the trade mark "Mountain Dew" was coined by M/s.Hartman Beverages in the year 1948 and was assigned to the plaintiffs Pepsi Co Incorporation in the year 1964 and had been continuously used by Pepsi Co since then. In India Pepsi Co Incorporation registered the word mark 'Mountain Dew' under Trade Mark No.436257 on 09.04.1985 in Class 32 covering "soft drinks, beverages and syrups and concentrates for the preparation thereof" and registered "Mountain Dew" Logo under PNR,J & Dr.GRR,J CCCA Nos.20 of 2021 & Batch Trade Mark No.444078 on 08.10.1985 in Class 32 covering "non- alcoholic syrups, concentrates and bases used in the preparations of such beverages". Pepsi Co introduced "Mountain Dew" in India in January, 2003. Pepsi Co commenced production of their product 'Aqua Fina' in India in October 2002. Magfast commenced its business and production of packaged drinking water under the mark 'Mountain Dew' in the year 2000.

46. Learned counsel for the defendants argued that both PWs.1 and 2 admitted Winchester and Jefferson using 'Mountain Dew' trade mark in US. Hence Pepsi Co did not have an exclusive right even in US. But the learned counsel for the appellants submitted that Winchester and West Jefferson were merely bottlers and distributors of Pepsi Co's, 'Mountain Dew', citrus soda, they were not manufacturing their own citrus soda and they had absolutely no rights over the 'Mountain Dew' mark; as Magfast had not taken the said plea in its written statement there was no occasion for Pepsi Co to produce the agreements or deals with the said Companies before PNR,J & Dr.GRR,J CCCA Nos.20 of 2021 & Batch the trial court and their use of mark was not against the interest of the Pepsi Co; mere fact that Pepsi Co trade mark was being used in other walks of life (whisky, Korean tea, etc.,) would not take away its distinctive character or bar Pepsi Co from seeking injunction against infringers; use of Pepsi Co trade mark by third parties would not give right to the Magfast to use the Pepsi Co's mark without authorization; Trade mark holders were not required to go after all the infringers, who might not be affecting their business; none of the above examples pertain to drinking water or other goods which were allied and cognate to 'Mountain Dew' citrus soda; no evidence was adduced by the defendants to prove that 'Mountain Dew' had been put to extensive use by any of these users or that their products were being used on a commercial scale.

66. It is also well established law that any prior use must be substantial prior use and not sporadic prior use. Small amount of sale in the market could not be treated as prior use. The Bombay High Court in H.M.Saraiya & Others vs. Ajanta India Limited and Another at para Nos.54 and 55 held that sporadic or small amount of sale in the market would not entitle any party to protection under Trade Mark law.

67. DW1 in his cross examination also admitted that Pepsi Co was prior user and adopter of trade mark 'Mountain Dew' globally. Pepsi Co contended that the public were well aware that the mark Mountain Dew belonged to Pepsi Co. The total sales under the said mark would run into billions of dollars and Pepsi Co. would spend approximately 15 million US dollars per annum on the advertisement and promotion of 'Mountain Dew' brand. The global annual sales of the trade mark was approximately 7 billion dollars. 'Mountain Dew' represented nearly 10% of Pepsi world wide sales PNR,J & Dr.GRR,J CCCA Nos.20 of 2021 & Batch and almost 17% of the sales in United States. The Mountain Dew drink ranked sixth only next to Coca Cola, Pepsi Cola, Diet Coke, Dr.Pepper and Diet Pepsi in its world wide sales in United States. The plaintiffs 'Mountain Dew' soda enjoyed almost 90% of the citrus flavored carbonated soda market. The Trade Mark 'Mountain Dew' was registered in more than 100 countries including Afghanistan, Bahrain, Gaza, Qatar, Saudi Arabia, West Bank, Yemen, Algeria, Australia, Austria, Benelux, Botswana, Brazil, Canada, China, Denmark, Finland, France, Germany, Greece, Gautemala, Honduras, Hongkong, India, Indonesia, Italy, Japan, South Korea, Lebanon, Malaysia, Mexico, Netherlands, Antilles, New Zealand, Panama, Paraguay, Puerto Rico, Sabah, Russia, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand, Transkei, Uruguay and Venda.

74. Per contra, learned counsel for the respondents contended that Pepsi Co was guilty of suppression of material facts. The disclaimers given by Hartman beverages came out during the evidence led by both the parties. Hence, Magfast had sought for amendment of written statement vide application filed under Order 6 Rule 17 for addition of para 23A which was allowed on 17.08.2006. Admittedly, till March 2007, Pepsi Co did not file any rejoinder and as such it was treated that there was no rejoinder to be filed as per specific docket entry to that effect on docket of O.S.No.95 of 2004. In effect there was no pleading on record by PNR,J & Dr.GRR,J CCCA Nos.20 of 2021 & Batch Pepsi Co as to their explanation to para 23A of amended written statement filed by Magfast. Necessary adverse inference had to be drawn for failure on the part of Pepsi Co to file rejoinder, though new set of facts were brought to their notice specifically and relied upon the judgment of the Hon'ble Apex Court in Sri-La-Sri Subramania Desika Gnanasambandana vs. State of Madras34 at para 17 and the judgement of High Court of Allahabad in Ajay Pratap Rai vs. District Basic Educational Officer35 at para 15, and contended that any amount of evidence without pleadings is no evidence in law. He relied upon the judgments of the Hon'ble Apex Court in Biraji and Others vs. Surya Pratap36 at para 7 and in S.P.Chengalvaraya Naidu Vs. Jagannath37, Dalip Singh vs. State of UP38, KD Sharma vs. Steel Authority of India39 on the aspect of suppression of material facts and relied upon the judgment of the Hon'ble Apex Court in Gopal Krishnaji Ketkar vs. Mohammad Haji Lathif40, M/s.Prestige Lights Limited vs. State Bank of MANU/SC/0341/1965 MANU/UP/0296/2007 MANU/SC/0820/2020 (1994) 1 SCC 1 (2010) 2 SCC 114 (2008) 12 SCC 481 (1968) 3 SCR 862 PNR,J & Dr.GRR,J CCCA Nos.20 of 2021 & Batch India41 and the judgment of the High Court of Delhi in Puneet Industrial Controls (P) vs. Aditya Enterprises Private Limited42 on the aspect that best evidence in possession of Pepsi Co was not produced for obvious reasons.