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(iv) Trade channels through which goods/services reach the market. The Plaintiffs products are sold at cold storages, wholesale distributors and supermarkets. They have to be fried or cooked to be eaten; the 1st Defendants food is served at its restaurants and is chosen from a menu (only the 1st Defendants sauces are sold at supermarkets). Moreover restaurants in the normal course, do not sell or serve frozen or processed meat products. The 1st defendant has stated that the sale of Sauces shall be only at the restaurant.

(v) Where goods likely to be found in supermarkets. The Plaintiffs products would be found at cold storages or at the frozen foods, meats counters at supermarkets; the 1st Defendants food would not be found at supermarkets.

(vi) Extent to which the goods/services are competitive. The Plaintiffs frozen and processed meat products do not compete with the 1st Defendants restaurants/food outlets nor with the 1" Defendants sauces. The Plaintiffs advertisements disclose its food products are to be heated and consumed at home.) whereas the Defendant services are the antithesis of that as a restaurant is where you go because you dont want to eat at home.

(vii) Whether goods/services traded/provided by the same business. Frozen and Processed meat products are not traded/ provided by the same business as a restaurant or a manufacturer of sauces.

It is, therefore, apparent that there is no similarity or association between the Plaintiffs products and the first Defendant Restaurant and sale of sauces.

17. Section 29(4) of the Trade Marks Act, 1999 reads as follows:

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use. uses in the course of trade, a mark which a. is identical with or similar to the Page 0930 registered trade mark; and b. is used in relation to goods or services which are not similar to those for which the trade mark is registered; and c. the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(iv) There is no evidence that the trademark "Nandus"EURO was used by the Plaintiff for its poultry business.

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(v) Moreover, the turnover and advertisement figures in the Plaint are not certified by an Auditor.

(vi)The Plaintiffs alleged reputation based on its second trade mark (for Heat n Eat packaged food other than processed meat products) is only from 2005. Hence the turnover and advertisement figures prior to 2004 -2005 do not include sales/advertising in respect of the second trademark. The advertisements at Ex. H-l 1 to H-14 are all given in the latter half of the year 2005.