Diageo Brands B. V And Ors. vs Khoday Breweries Ltd & Ors on 3 September, 2014

[Cites 20, Cited by 0]

Delhi High Court

Diageo Brands B. V And Ors. vs Khoday Breweries Ltd & Ors on 3 September, 2014

Bench: G.P. Mittal

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 03rd September, 2014
+ I.A. No. 16758/ 2010 (Order XXXIX Rules 1 & 2 CPC and
I.A. No. 1908/ 2012 (Order XXXIX Rules 1 & 2 CPC) in
CS (OS) No. 2510/ 2010

DIAGEO BRANDS B. V AND ORS. ..... Plaintiffs

Through: Mr. C.M. Lall, Advocate with
Ms. Nancy Roy, Advocate.

versus

KHODAY BREWERIES LTD & ORS ..... Defendants

Through: Mr. Gopal Jain, Senior Advocate with
Ms. Padma Priya, Advocate for D-1 to
D-15.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
1. By virtue of this application under Order XXXIX Rules 1 and 2 read

with Section 151 of the Code of Civil Procedure, 1908 (CPC), the

Plaintiffs seek an ad interim injunction in their favour and against the

Defendants in the following terms:-

(i) From either jointly or severally using or attempting to use or

asserting any right to use or applying to register or to maintain

the applications, or to register any of the trademarks mentioned

in paragraph 20 of the plaint or any other trademark similar to

any trade mark of any of the Plaintiffs more particularly

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 1 of 38
mentioned in paragraphs 5 to 16 of the plaint, or using or

applying for any trademarks containing an essential or

prominent element of the trademarks mentioned in paragraphs 5

to 16 of the plaint or in any other manner whatsoever infringing

the registered trademarks of the Plaintiffs or in violation of any

other rights in the registered trademarks of the Plaintiffs;

(ii) From passing off their goods as and for the goods of the

Plaintiffs by the use of any of the marks specifically mentioned

in paragraph 20 of the plaint or any other trademark similar to

the trademarks of the Plaintiffs more particularly mentioned in

paragraphs 5 to 16 of the plaint or associating themselves or

their products in any way with the Plaintiffs or the Plaintiffs‟

trademarks or products; and

(iii) From either jointly or severally using or attempting to use or

asserting any right to use the registered trademarks, mentioned

under paragraph 21 of the plaint and/ or any other registration

that the Defendants may have obtained for a mark which is

similar to trademarks of the Plaintiffs mentioned in paragraphs

5 to 16 of the plaint and produce such Registration Certificates.

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2. A suit for permanent and mandatory injunction for infringement of

registered trademarks, for passing off, unfair competition and damages

has been filed by the Plaintiffs alleging that the Plaintiffs are a group

of companies or associated or affiliated companies of Diageo Plc.,

which is one of the world‟s most famous trade names in

manufacturing, distribution, marketing and sale of alcohol beverages

including wines, liquors, spirits, cordials, beers and other products.

3. Plaintiffs operate in over 180 countries and territories across Europe,

North and South America and Asia-Pacific and are the owners of a

global portfolio of the world‟s best known brands such as JOHNNIE

WALKER RED LABEL, JOHNNIE WALKER BLACK LABEL,

JOHNNIE WALKER GREEN LABEL, JOHNNIE WALKER GOLD

LABEL, JOHNIE WALKER BLUE LABEL, CAPTAIN MORGAN,

VAT 69, SMIRNOFF, BLACK & WHITE, BAILEYS, BELL‟S, J&B

and GUINNES and several others.

4. It is urged that Plaintiff no. 1 is a company incorporated under the

laws of Netherlands and is the registered proprietor of the trademarks

mentioned at pages 17-38 of the plaint, in India. Some of the

mentioned registrations are pending certain recordals of devolution of

title and are pursued by Plaintiff no. 1 with the Trademarks Registry.

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 3 of 38
However, applications for the trademarks mentioned at pages 38-39 of

the plaint are pending before the Registrar of Trademarks in India.

5. Plaintiff no. 2 is a corporation incorporated under the laws of the State

of Connecticut, U.S.A. and is the registered proprietor of the

trademarks mentioned at pages 40-51 of the plaint, in India. Some of

the mentioned registrations are pending certain recordals of devolution

of title and are pursued by Plaintiff no. 2 with the Trademarks

Registry. However, applications for the trademarks mentioned at page

51 of the plaint are pending before the Registrar of Trademarks in

India.

6. Plaintiff no. 3 is a corporation organised under the laws of Scotland

and is the registered proprietor of the trademarks mentioned at pages

52-56 of the plaint, in India. Some of the mentioned registrations were

pending certain recordals of devolution of title and are pursued by

Plaintiff no. 3 with the Trademarks Registry. However, applications

for the trademarks mentioned at page 56 of the plaint are pending

before the Registrar of Trademarks in India.

7. Plaintiff no. 4 is a corporation organised under the laws of Ireland and

is the registered proprietor of the trademarks HARP, GUINESS and

GUINESS ABSTRACT HARP in India. However, application for
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trademark KILKENNY in the name of Plaintiff no. 4 is pending

before the Registrar of Trademarks in India.

8. Plaintiff no. 5 is a corporation organised under the laws of U.S.A. and

is the proprietor of the trademarks THE MONTEREY VINEYARD,

STERLING VINEYARDS and BEAULIEU VINEYARD in India.

Plaintiff no. 2 assigned these trademarks to Plaintiff no. 5 by an

assignment dated 30.06.2008. This assignment was filed for recorder

at the Indian Trademarks Registry on 22.09.2008 but the change of

ownership is pending. Some of the mentioned registrations were

pending certain recordals of devolution of title and are pursued by

Plaintiff no. 5 with the Trademarks Registry, and the applications for

the trademarks BLOSSOM and BLOSSOM HILL in the name of

Plaintiff no. 5 are pending before the Registrar of Trademarks in India.

9. Plaintiff no. 6 is a corporation organised and existing under the laws

of Singapore and is the owner of the trademarks SHANGHAI WHITE

and SHANGHAI WHITE 3-D, the registrations of which are pending

before the Registrar of Trademarks in India.

10. Plaintiff no. 7 is a corporation organised and existing under the laws

of Argentina and is the registered proprietor of the trademark SAN

TELMO in India.
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11. Plaintiff no. 8 is a corporation organised and existing under the laws

of India. Plaintiff no. 8 has appropriate authorisations/ licences to use

all the trademarks belonging to Plaintiffs no. 1 to 11 in India. Plaintiff

no. 8 is the registered proprietor of the trademarks ANCHOR ST,

Shark Fin & Device and YOU ARE INTERESTING in India and the

application for trademark SHARK TOOTH in the name of Plaintiff

no. 8 is pending before the Registrar of Trademarks in India.

12. Plaintiff no. 9 is a corporation organised under the laws of Ireland and

is the registered proprietor of the trademarks mentioned at pages 60-62

of the plaint, in India. Some of the mentioned registrations were

pending certain recordals of devolution of title and are pursued by

Plaintiff no. 9 with the Trademarks Registry and the applications for

registration of the trademarks BB and Horse and Rider Device (2007

version) in the name of Plaintiff no. 8 are pending before the Registrar

of Trademarks in India.

13. Plaintiff no. 10 is a corporation organised and existing under the laws

of Ireland and is the registered proprietor of the trademarks

BUSHMILLS (330920), BUSHMILLS (331875), BLACK BUSH,

and BUSHMILLS (935955) in India and the application for the

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trademark STILL in the name of Plaintiff no. 10 is pending before the

Registrar of Trademarks in India

14. Plaintiff no. 11 is a corporation organised and existing under the laws

of Netherlands Antilles and is the registered proprietor of the

trademarks URSUS (704941) and URSUS (701189) in India.

15. According to the case set up by the Plaintiffs, Defendants no. 1 to 4

are a part of one group of companies dealing in alcohol and beverage

products similar to those of Plaintiffs and are under a common

management. Defendants no. 5 to 14 are responsible for the

management of Defendants no. 1 to 4 group of companies.

16. It is averred that Defendants no. 1 to 4 have filed trademark

applications which have been mentioned in Para 19 (pages 64-67 of

the plaint) and to which the Plaintiffs are aware that they are

confusingly and deceptively similar to the trademarks of Plaintiffs.

These trademarks were advertised in the Trade Marks Journal and

were opposed by one of the Plaintiffs.

17. It is stated that the trademarks KHODEY BLACK & WHITE, VAT

999, GUDNESS, BOND‟S GREEN LABEL, CAPTAIN WALKER,

PETEWALKER, PETEWALKR and NOF were also found

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deceptively similar to the trademarks of the Plaintiffs and were

wrongly registered by Defendants no. 1 to 4.

18. It is pleaded that Plaintiffs initiated various proceedings against the

Defendants and filed various applications as mentioned in para 21

(pages 68 to 71 of the plaint). Most of the applications for obtaining

similar trademarks were abandoned as mentioned in the tabulated

form in para 21 of the plaint, whereas some oppositions initiated by

Plaintiff no. 1 i.e., application bearing no. 801153 for the mark BON-

E-WALKER in Class 33 and application bearing no. 845538 for the

mark BONNIE-V-WALER in Class 32 filed by Defendant no. 1 were

concluded successfully in favour of Plaintiff no. 1.

19. It is pleaded that in the year 1991, Plaintiff no. 1 and its predecessors

became aware of the adoption of the mark VAT 999 and passing off of

the trademark of JOHNNIE WALKER RED LABEL brand of the

Plaintiffs by the Defendants in relation to Whisky. The Plaintiffs filed

a suit bearing no. 866/ 1996 against Defendant no. 1 and an interim

injunction dated 23.04.1996 was passed against the Defendants as

under:-

"the Defendants are restrained from selling, offering for
sale, advertising, directly or indirectly dealing in whiskies

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under the mark VAT 999 or any other mark identical with or
deceptively similar to the Plaintiff‟s trade mark VAT 69."

20. The said civil suit on account of increase in pecuniary jurisdiction of

the District Court is pending before the Additional District Judge,

Delhi and the injunction order is operating against Defendant no. 1. It

is the case of the Plaintiffs that in early 2000, the Plaintiffs became

aware of Defendant no. 1 having filed applications for the marks JOL-

E- WALKER, BON-E-WALER, UNCLE WALKER and WALKER‟S

CHOICE. Thus, perceiving a threat by the Defendants of introducing

these marks in the market, Plaintiff no. 1 instituted a suit bearing no.

2781/2000 against Defendant no. 1. The Delhi High Court again

granted an ex-parte ad interim injunction against the Defendant by an

order dated 15.12.2000 as under:-

".... the Defendants, its distributors, servants, agents,
representatives and assigns etc. are restrained from using
the trade mark JOL-E-WALER, BON-E-WALKER, UNCLE
WALKER AND WALKER‟S CHOICE and any other trade
mark or trade marks which are deceptively or confusingly
similar to the Plaintiff‟s registered trade mark "JOHNNIE
WALKER" in respect of their goods or in advertising and
promotional material or any other manner whatsoever
infringing the Plaintiff‟s rights in and to their registered
mark JOHHNIE WALKER".

21. A decree was passed for perpetual injunction in favour of the Plaintiffs

therein and against the Defendants therein restraining them from using

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the trademarks JOL-E- WALKER, BON-E-WALKER, UNCLE

WALKER and WALKER‟S CHOICE which were confusingly similar

to the trademark of the Plaintiffs‟ JOHNNIE WALKER in respect of

their goods or any advertisement and promotional material.

22. It is alleged that despite the above suit having been initiated in the

year 2000 and not contested by the Defendants, the predatory tactics

of the Defendants continued unabated in as much as in the year 2003,

the Defendants filed yet another application for registration of the

mark PETER WALKER.

23. It is urged that malafides of the Defendants are evident from the fact

that being in the alcoholic beverages trade, the Defendants who are

well aware of the Plaintiffs‟ trademarks have deliberately adopted

virtually identical or deceptively similar marks, or marks having

essential and prominent portions of the Plaintiffs‟ marks, in respect of

same or similar goods so as to cause confusion and deception in the

market and to make unjust profits for themselves or by trying to ride

on the reputation of the Plaintiffs.

24. The Plaintiffs have also given details of the well known global marks

of the third parties which were opposed by the said parties by

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initiating oppositions to the applications for registration filed by the

Defendants.

25. Plaintiff no. 1 addressed a cease and desist notice dated 14.01.2009 to

the Defendants no. 2 and 3 setting forth all the relevant particulars,

pertaining to the Plaintiffs‟ right in their registered trademarks and

calling upon the Defendants to withdraw the pending applications

filed by them.

26. The Plaintiffs thus, sought ad interim injunction as stated above.

27. Defendants no. 1 to 14 filed a joint written statement and joint reply to

the application under Order XXXIX Rules 1 and 2 CPC. The

Defendants have denied that they are using deceptively similar marks

or proposing to use similar or deceptively similar marks as that of the

Plaintiffs.

28. It is stated that the Plaintiffs have sought a blanket injunction to

restrain the Defendants from filing applications seeking registration of

trademarks which is not permissible and will tantamount to pre-

empting the Defendants even from applying for a trademark based on

the subjective and biased evaluation of the Plaintiffs rather than the

Registrar of Trade Marks. Thus, it is stated that the prayer in the suit

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seeking remedies in respect of Defendants‟ applications which are

pending before the Trade Marks Registrar is barred under Section 93

of the Trade Marks Act, 1999 (the Act).

29. Defendants no. 1 to 14 have stated that Defendant no. 15 is a separate

legal entity and the present suit cannot be allowed to be extended to

Defendant no. 15. It is stated that in Diageo North America Inc. &

Anr. v. Shiva Distilleries Limited, CS (OS) No. 255/2004 decided by

Delhi High Court on 05.07.2007, it was held that there was no

similarity between the trademarks SMIRNOFF and BRISNOFF. It

was held that BRISNOFF is not deceptively similar and can in no

manner be confused with the Plaintiffs‟ trademarks. The Defendants

extracted paras 13 and 14 of the order passed in CS (OS) No.

255/2004 as under:-

".........the fact remains that the syllable „NOFF‟ has been in
use in respect of alcoholic products and particularly in the
case of vodka. Perhaps, the same is used to indicate a
Russian connection as vodka is generally discerned as a
Russian drink. Whether it has become a descriptive term or
not is debateable, but, at this prima facie stage it cannot be
said that the Plaintiffs have established their exclusive right
to use the same.

14. So much for the second syllable. As regards the first
syllable, I find that there is no similarity between SMIR and
BRIS. Although the learned counsel for the Plaintiffs had

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 12 of 38
submitted that all the letters are common except the letter M
in SMIR and the letter B in BRIS, this, to my mind, is of no
consequence because the arrangement of the letters is
entirely different, as is the phonetic and visual result. I also
agree with the submission made by the learned counsel for
the Defendant that the intending purchasers of the
competing products are literate persons belonging to the
affluent class of the society and who would be in a position
to easily distinguish SMIRNOFF from BRISNOFF
particularly when the eyebrow device and the colour
combination is sought to be given up by the Defendant. The
average person with imperfect recollection would have to be
from amongst the sub-set of such persons i.e., discerning
consumers of vodka. My prima facie view is that the trade
mark BRISNOFF is not deceptively similar to, nor can it be
confused with the Plaintiffs' trade mark SMIRNOFF."

30. It was thus, stated that the mark METRONOFF and SMIRNOFF are

also not similar and Defendant no. 15 cannot be disallowed from

pursuing the application for registration of the earlier said trademarks.

It was stated that the suit filed by the Plaintiffs as such was not

maintainable as Sections 18 to 26 of the Act lays down the procedure

for registration of trademarks. Any person claiming a pre-existing

right in the same as a right to file opposition and ultimately, it was for

the registry to decide on the application. The Plaintiffs, therefore,

cannot take away the statutory right of proposed Defendant no. 15 to

apply for registration of the mark „METRONOFF‟.

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 13 of 38
31. I have heard Mr. C. M. Lall, learned counsel for the Plaintiffs and Mr.

Gopal Jain, learned Senior Counsel for the Defendants.

32. The prayer for ad interim injunction made by the Plaintiffs can be

divided in five parts, that is, restraint order restraining the Defendants

either jointly or severely from (i) using or attempting to use or (ii)

asserting any right to use or (iii) applying to register or (iv) to

maintain the applications, or (v) to register any of the trademarks

mentioned in paragraph 20 of the application.

33. First of all, I shall like to deal with the prayers (iii), (iv) and (v) in the

application. As far as prayer (v) is concerned, these marks have

already been registered by Defendant no. 1. The Plaintiffs can take

appropriate proceedings for cancellation of the marks as may be

advised irrespective of their action for passing off against the

Defendants. Thus, a restraint order against registering any trade mark

which is already registered by Defendant no. 1 cannot be granted at

this stage.

34. Turning to prayers (iii) and (iv), the learned counsel for the Plaintiffs

urges that the Defendants cannot insist and compel the Plaintiffs to

keep a watch on every trade mark applied for registration which is

similar or deceptively similar to the trademark of the Plaintiffs. The
I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 14 of 38
Plaintiffs cannot be forced to always file an application for opposition

and if the Defendants are aware that they are applying for a similar or

deceptively similar trademark as that of the Plaintiffs, they should be

restrained from lodging any such application with the Trade Marks

Registry.

35. Referring to Section 18 of the Act, the learned counsel for the

Plaintiffs has urged that there is no inherent right in the Defendants to

make a trademark application. Such an application can only be made

by "person claiming to be proprietor" who has "used" or "proposes to

use" the trade mark in near future.

36. Referring to American Home Product v. Mac Laboratories, AIR 1986

SC 137, the learned counsel for the Plaintiffs has contended that the

intention to use a trademark sought to be registered must be genuine

and real. The intention to use the mark must exist on the date of

making the application for registration.

37. The learned counsel for the Plaintiffs has argued that as soon as the

Defendants make a claim in the application for registration that they

have either used the mark or that they propose to use the mark in the

foreseeable future either by themselves or through a company to be

formed in future and if the said mark is same or deceptively similar to
I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 15 of 38
the mark of the Plaintiffs, they invade the right of the Plaintiffs and the

Plaintiffs would be entitled to an injunction under Section 38 (3) of the

Specific Relief Act, 1963.

38. It is urged that the Plaintiffs are registered proprietors of several

trademarks and by virtue of Section 28 of the Act, they have the

exclusive right to use the trademarks in respect of specified goods and

to obtain relief in respect of infringement, which means right to

restrain others from using an identical mark or a deceptively or

confusingly similar mark.

39. Referring to N.R. Dongre v. Whirlpool, AIR 1995 Delhi 300, the

learned counsel for the Plaintiffs has urged that registration of a

trademark under the Act would be irrelevant in an action for passing

off. Registration of a trade mark in fact does not confer any new right

on the proprietor thereof than what already existed at common law

without registration of the mark.

40. The learned counsel for the Plaintiffs has contended that the Civil

Court is well within its right to adjudicate upon what constitutes

passing off or not and since the jurisdiction of the Civil Court is not

barred by any statute either expressly or impliedly, the Plaintiffs are

entitled to the relief as stated above.
I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 16 of 38
41. The learned counsel for the Plaintiffs has strenuously contended that

bar of jurisdiction of the Civil Court as given under Section 93 of the

Act would be applicable only when the matter of registration or

refusal of registration of any trademark is before an Appellate Board

as provided in Section 91 of the Act. This has nothing to do with the

right of the Plaintiffs to restrain a person who intends to apply for a

deceptively similar mark to the Registrar for registration.

42. With regard to prayers (i) and (ii) the learned counsel for the Plaintiffs

has argued that the Defendants are trying to cash on the reputation and

trademarks of the Plaintiffs and that is why, when the Plaintiffs made

opposition to a large number of trademarks for which the Defendants

sought registration, the Defendants either abandoned the application

for registration or the opposition was successfully allowed or the

opposition is pending before the Registry.

43. Per contra Mr. Gopal Jain, learned senior counsel for the Defendants

has urged that a blanket order restraining the Defendants to apply to

Section 41 (h) of the Specific Relief Act, 1963 as the alternative

remedy to oppose registration is available under the Act. The suit is

also barred under Section 9 of the CPC in view of the provisions of

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Section 93 read with Section 91 of the Act. In support of his

contention, the learned senior counsel for the Defendants has relied

upon Srikant Kashinath Jituri & Ors. v. Corporation of City of

Belgaum, (1994) 6 SCC 572.

44. Referring to Dhodha House v. S.K. Maingi, (2006) 9 SCC 41, the

learned Sr. Counsel for the Defendants has contended that cause of

action will arise only when a registered trademark is used or when an

application is filed for registration of the trademark. An application for

grant of registration certificate may or may not be allowed. A person

in whose favour a Registration Certificate has already been granted

indisputably will have an opportunity to oppose the same by filing an

opposition before the Registrar who has the requisite jurisdiction to

determine the said question. The learned Sr. Counsel for the

Defendants has very strenuously stated that vigilance is the

cornerstone of any right and it cannot be a ground to pre-empt filing of

an opposition to an intended registration of any trademark which is the

foundation of the concept of registration of trademark and the

Plaintiffs cannot be allowed to contend that they cannot be forced to

oppose every application filed by the Defendants.

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45. In the alternative, the learned Senior Counsel for the Defendants urges

that the order sought, if granted, will lead to absurdity because there

will be nobody to decide whether the trademark which the Defendants

want to adopt is deceptively or confusingly similar to that of the

Plaintiffs and the Defendants may face contempt even if they

bonafidely apply for registration of the trademark which in their

opinion is not deceptively or confusingly similar, but is held to be so

by the Civil Court. It is urged that there is an elaborate machinery

under Section 21 of the Act to decide whether the proposed mark is to

be registered in the name of the applicant or not.

46. With regard to prayers (i) and (ii), the learned Sr. Counsel for the

Defendants has stated that the trademarks which are sought to be

registered or sought to be used are not similar or deceptively and

confusingly similar to the marks of the Plaintiffs. Thus, there is no

question of infringement of any registered trademark of the Plaintiffs

and the injunction application is thus, liable to be dismissed.

47. I have gone through the record and given my thoughtful consideration

to the respective contentions raised on behalf of the parties.

48. Chapter III of the Act deals with the procedure for registration and the

duration of registration. As per Section 18, any person claiming to be
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the proprietor of a trademark used or proposed to be used by him or

who is desirous of registering it shall apply in writing to the Registrar

in the prescribed manner for registration of his trademark. If the

application is not withdrawn as provided under Section 19, an

advertisement of the application is to be issued as provided under

Section 20. Section 21 provides for the limitation within which a

person may apply for opposition to the registration. Section 23

provides for registration of the trademark, which is extracted

hereunder:

"23. Registration. - (1) Subject to the provisions of Section
19, when an application for registration of a trade mark has
been accepted and either-

(a) the application has not been opposed and the time for
notice of the opposition has expired; or

(b) the application has been opposed and the opposition
has been decided in favour of the applicant,

the Registrar shall, unless the Central Government otherwise
directs, register the said trade mark and the trade mark when
registered shall be registered as of the date of the making of
the said application and that date shall, subject to the
provisions of Section 154, be deemed to be date of
registration.

(2).....

(3)....

(4)....."

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 20 of 38
49. Then, there are provisions for duration, renewal, removal and

restoration of the registration. Section 27 (1) debars any person to

institute any proceedings to prevent or to recover damages in the

infringement of an unregistered trademark. At the same time, as per

Section 27 (2), a person with an unregistered trademark is competent

to have his remedy for passing off goods or services as the goods of

another person or as services provided by another person. Section 91

entitles a person aggrieved by an order or decision of the Registrar

under the Act to file an appeal before the Appellate Board and Section

93 creates the bar of jurisdiction of the Court in respect of matters

referred to in Section 91 (1). Sections 91 and 93 are extracted

hereunder:

"91. Appeals to Appellate Board. - (1) Any person
aggrieved by an order or decision of the Registrar under this
Act, or the rules made thereunder may prefer an appeal to the
Appellate Board within three months from the date on which
the order or decision sought to be appealed against is
communicated to such person preferring the appeal.

(2).....

(3)....."

xxxx

"93. Bar of jurisdiction of courts, etc. - No court or other
authority shall have or, be entitled to, exercise any jurisdiction,

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 21 of 38
powers or authority in relation to the matters referred to in sub-
section (1) of Section 91."

50. Thus, Registrar is entitled to register or refuse registration as provided

under Chapter III and appeal thereof is provided under Section 91 of

the Act. Bar of jurisdiction of the civil court is only with regard to the

matters which are provided under Section 91 of the Act. Thus,

wherever the trademark is ordered to be registered or the registration

in respect of the trademark is refused by Registrar, an appeal lies to

the Appellate Board under Section 91 of the Act. The other remedy

against the registration or refusal to register i.e. the civil court is thus,

barred to entertain any proceedings with regard to the registration or

refusal to registration. Section 93 neither specifically nor by

implication bars the jurisdiction of a civil court to injunct a person

from applying for registration. At the same time, since a detailed

procedure for registration, opposition to registration, etc., is given

under the Act, it will not be appropriate to grant an injunction against

an application for registration. I tend to agree with the learned Sr.

Counsel for the Defendants that such an injunction, if granted, will

lead to absurdity because there will be nobody to decide whether the

trademark, which a person wants to adopt, is liable to be registered or

not. A party may think a trademark not to be deceptively or

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 22 of 38
confusingly similar and may bonafidely apply for registration of the

same and then face contempt if the Court holds that the mark applied

by the said person was deceptively or confusingly similar to the one

being used and registered by the Plaintiff. He may unwittingly face

contempt of the Court. In any case, simply because the Plaintiff should

not be compelled to oppose every application for registration of the

trademark, the Defendants cannot be injuncted from applying to

down the time limit and the procedure for filing opposition to the

registration. In view of the specific procedure laid down for

registration and duration of the trademark in Chapter III, it is not

permissible to grant the injunction as stated above.

51. The learned Sr. Counsel for the Plaintiffs could not refer to any

precedent where such an injunction was granted. I could lay my hand

on only one order of this Court in Zee Telefilms Ltd. & Anr. v. Union

of India & Ors., (C.M. No. 1703/ 2007 in CM (M) No. 183/ 2007),

where while staying the operation of the registration of the trademark

"Zee", the Registrar of Trademarks was restrained from processing

pending applications pertaining to registration of the trademark "Zee".

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 23 of 38
52. The Plaintiffs in para 19 of the plaint have mentioned in a tabulated

form the trademarks which were proposed to be used by the

Defendants and which were deceptively or confusingly similar to the

marks of the Plaintiffs. In para 21 of the plaint, the Plaintiffs have

given the details of the opposition to the various trademarks sought to

be registered by the Defendants, where the application for registration

of the trademark was either abandoned or the opposition was allowed.

In one such case highlighted in the tabulated form hereunder, an

adverse order was passed against the Plaintiffs wherein an appeal as

provided under Section 91 has been filed by the Plaintiffs. Para 21 of

the plaint is extracted hereunder:

"Given herein below is a detailed chart of the opposition
proceedings initiated by the Plaintiffs against the
Defendants‟ many applications for marks which offend
the Plaintiffs‟ trademarks:
S. No. Defendants Plaintiffs' Number Date of User Status of the
impugned trade Defenda opposition
marks marks nts' proceedings
applicat
ions
1. JOL-E- JOHINNIE 945062 04-Aug- Proposed Application
WALKER WALKER 2000 to be abandoned
proposed
2. JOL-E- JOHNNIE 845542 16- Proposed Application
WALKER WALKER Mar- to be abandoned
proposed
1999
3. JOL-E- JOHINNIE 801152 06- Proposed Application
WALKER WALKER to be abandoned

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 24 of 38
May- proposed
1998
4. BON-E JOHNNIE 801153 06- Proposed Opposition
WALKER WALKER May- to be allowed.
proposed Application
1998
refused
registration.
5. BONNIE- JOHNNIE 798014 07- Proposed Awaiting
V- WALKER Apr- to be hearing to be
proposed appointed.
WALKER 1998
6. BONNIE-V- JOHNNIE 945549 07-Aug- Proposed Application
WALKER WALKER 2000 to be abandoned.
(Label) proposed
7. BON-E- JOHNNIE 945558 07-Aug- Proposed Application
WALKER WALKER 2000 to be abandoned.
(Label) proposed
8. BON-E- JOHNNIE 845541 16-Mar- Proposed Awaiting
WALKER WALKER 1999 to beEvidence in
proposed support of
application.
9. BONNIE-V- JOHNNIE 845538 16-Mar- Proposed Opposition
WALKER WALKER 1999 to be allowed.
proposed Application
refused
registration.
10. UNCLE JOHNNIE 831792 B 10-Dec- Proposed Application
WALKER WALKER 1998 to be abandoned.
used
11. UNCLE JOHNNIE 868778 30-July- Proposed Awaiting
WALKER WALKER 1999 to be hearing to be
used appointed.
12. CAPTAIN JOHNNIE 945047 04-Aug- Proposed Application
WALKER WALKER 2000 to be abandoned.
used
13. UNCLE JOHNNIE 903075 11-Feb- Proposed Application
WALKER WALKER 2000 to be abandoned.
(Label) used
14. CAPTAIN CAPTAIN 863117 29-June- Proposed Application
WALKER MORGAN 1999 to be abandoned.
and used

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 25 of 38
JOHNNIE
WALKER
15. WALKER‟S JOHNNIE 938765 12-Jul- Proposed Application
CHOICE WALKER 2000 to be abandoned.
used
16. WALKER‟S Johnnie 863893 05-Jul- Proposed Awaiting
CHOICE Walker 1999 to be hearing to be
used appointed.
17. WALKER‟S JOHNNIE 804677 04-Jan- Proposed Awaiting
CHOICE WALKER 1998 to be hearing to be
used appointed.
18. PETEWALK JOHNNIE 869490 04-Aug- Proposed Awaiting
ER WALKER 1999 to be hearing to be
used appointed.
19. PETER JOHNNIE 1177923 25-Feb- Proposed Awaiting
WALKER WALKER 2013 to be hearing to be
used appointed.
20. PETEWALK JOHNNIE 945054 04-Aug- Proposed Awaiting
ER WALKER 2000 to be Counter
used Statement.
21. VAT 999 VAT 69 938758 12-Jul- Proposed Application
(Label) 2000 to be abandoned.
used
22. VAT 999 VAT69 675559 03-Aug- Since Application
1995 20/09/19 abandoned.
91
23. VAT 999 VAT-69 885871 08-Nov- Proposed Awaiting
1999 to be Counter
used Statement.
24. AMRONOFF SMIRNOFF 879482 01-Oct- Proposed Application
1999 to be abandoned.
used
25. AMRONOFF SMIRNOFF 879515 01-Oct- Proposed Awaiting
1999 to be Evidence in
used support of
Application.
26. AMRONOFF SMIRNOFF 762505 17-Jul- Proposed Awaiting
(Label) 1997 to be hearing to be
used appointed.
27. BALKANOF SMIRNOFF 878182 24-Sep- Proposed Application
F 1999 to be abandoned.

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 26 of 38
used
28. RHUMNOFF SMIRNOFF 646768 25-Nov- Proposed Awaiting
1994 to be hearing to be
used appointed.
29. CZARNOFF SMIRNOFF 628245 17-May- Proposed Application
1994 to be abandoned.
used
30. CZARNOFF SMIRNOFF 634116 18-Jul- Proposed Awaiting
IMPERIAL 1994 to be Counter
vodka used Statement.
31. BALKANOF SMRINOFF 879495 01-Oct- Proposed Awaiting
F 1999 to be Counter
used Statement.
32. AMRONOFF SMIFNOFF 879482 01-Oct- Proposed Application
1999 to be abandoned.
used
33. NOFF SMIRNOFF 1611526 15-Oct- Proposed Awaiting
2007 to be evidence in
used support of
application.
34. NOF SMIRNOFF 728798 01-Oct- Proposed Awaiting
1996 to be evidence in
used support of
application.
35. CAPTAIN CAPTAIN 903112 11-Feb- Proposed Application
SCOTT 2000 to be abandoned.
(Label) used
36. CAPTAIN CAPTAIN 804959 05-Jun- Proposed Application
DENIEL MORGAN 1998 to be abandoned.
used
37. CAPTAIN CAPTAIN 804670 04-Jun- Proposed Application
GREENE MORGAN 1998 to be abandoned.
used
38. CAPTAIN CAPTAIN 868783 30-Jul- Proposed Application
SCOTT MORGAN 1999 to be abandoned.
used
39. CAPTAIN CAPTAIN 903094 11-Feb- Proposed Application
GREENE MORGAN 2000 to be abandoned.
logo used
40. CAPTAIN CAPTAIN 845549 16-Mar- Proposed Application
DANIEL MORGAN 1999 to be abandoned.

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 27 of 38
used
41. CAPTAIN CAPTAIN 831752B 10-Dec- Proposed Final
FISHER MORGAN 1998 to be arguments
used concluded.
Awaiting
hearing
order.
42. CAPTAIN CAPTAIN 869483 04-Aug- Proposed Awaiting
FISHER MORGAN 1999 to be Counter
used Statement.
43. CAPTAIN CAPTAIN 945566 07-Aug- Proposed Awaiting
FISHER MORGAN 2000 to be Evidence in
(Label) used support of
Application.
44. CAPTAIN CAPTAIN 831790 10-Dec- Since Awaiting
SCOTT MORGAN 1998 28/09/19 Counter
98 Statement.
45. CAPTAIN CAPTAIN 806552 17-Jun- Proposed Awaiting
GREENE MORGAN 1998 to be hearing to be
used appointed.
46. KHODAY'S BLACK 518496 17-Oct- 31/10/19 Adverse
BLACK LABEL 1989 98 order
LABEL received.
Appeal filed.
47. GUDNNESS GUINNESS 945042 04-Aug- Proposed Application
(Label) 2000 to be abandoned.
used
48. BONDS GREEN 806525 17-Jun- Proposed Awaiting
GREEN LABEL 1998 to be Counter
LABEL used Statement.
49. BOND‟S GREEN 900946 01-Feb- Proposed Application
GREEN LABEL 2000 to be abandoned.
LABEL used
(Label)
50. GORBEYS GILBEY‟S 780412 01-Dec- Proposed Application
1997 to be abandoned.
used
51. GORBEYS GILBEY‟S 770976 16-Oct- Proposed Application
1997 to be abandoned.
used

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 28 of 38
53. Thus, it will be seen that out of total 51 marks, 26 marks were

abandoned, 02 marks were refused, hearing is awaited in rest of the

cases and as stated above, an adverse order has been passed in one

case.

54. The Defendants have relied upon an order dated 05.07.2007 in I.A.

No. 1717/ 2004 in CS (OS) No. 255/ 2004, DIAGEO NORTH

AMERICA, INC. AND ANOTHER v. SHIVA DISTILLERIES

LIMITED, where Defendant‟s Shiva Distilleries Limited mark

"BRISNOFF" was found to be not deceptively or confusingly similar

to the Plaintiff‟s trademark "SMIRNOFF". The order dated

05.07.2007 passed in I.A. No. 1717/ 2004 is not applicable to the facts

of the present case for several reasons. First, the Defendant in that case

was already using the trademark "BRISNOFF". Secondly, it was

found as a fact that the two trademarks were visually and phonetically

dissimilar. All the more, the Defendant had undertaken "to stop using

the eyebrow device and to alter the colour combination as offered by

the learned counsel for the Defendant".

55. In the instant case, the table extracted from para 21 of the plaint earlier

clearly reveals that the Defendants want to ride on the goodwill and

reputation of the Plaintiffs and that is why as many as 20 marks are

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 29 of 38
sought to be registered which prima facie, are similar to the Plaintiffs‟

mark JOHNNIE WALKER. It is apparent that the Defendants have

malafidely not only used the word WALKER, but have taken similar

alphabets from first word JOHNNIE. Similarly, Defendant no. 1 got a

mark VAT 999 registered as against the registered trademark VAT 69

of the Plaintiffs. In N.R. Dongre and Others. V. Whirlpool

Corporation and Another, (1996) 5 SCC 714, the Supreme Court

dismissed an appeal against the order passed by a Division Bench of

this Court upholding the order of learned Single Judge restraining the

Respondent from using the trademark WHIRLPOOL although the

same had been got registered by the Respondent in spite of its opposition by the Appellant as it was established that the Appellant‟s trademark WHIRLPOOL although not registered in India had acquired reputation and goodwill in this country.

56. The Defendants applied for various marks numbering 54 stating that the marks are proposed to be used. As per Section 18 of the Act, a person claiming to be the proprietor of a trademark used or proposed to be used by him, is entitled to apply for registration of his trademark. It is apparent from the averments of para 19 that the application for registration of a number of trademarks was filed with the Registrar of I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 30 of 38 Trademarks under Section 18 of the Act between the year 1994 to 2000. Most the applications were filed during the period 1998 to 2000. None of the marks have so far has been used by Defendant no.1, although the instant suit was filed in the year 2010. A person claiming to be the proprietor of a trademark as referred to in Section 18 of the Act is a person who has already used or who proposes to use the trademark in respect of which an application has been made. The words proposed to be used by him do not refer to a person who does not intend to use the mark in foreseeable future. The fact that the trademark had not been used by the Defendants before applying for registration or even thereafter, for a long time itself shows that the Defendants were taking chance to get the mark registered as one such mark i.e., KHODAY‟S BLACK LABEL as given in para 21 and reproduced earlier was allowed to be registered in respect of which an appeal has been filed by the Plaintiffs. As per the averments made in para 11 of the preliminary objections to the written statement, the Defendants have been manufacturing liquor in India since before l968. It is stated in para 11 of the written statement that the Defendants have many registered and unregistered marks, including Peter Scot, Red Knight, Hercules Rum, Khodays Black Label etc. Thus, getting/ obtaining registration to similar or deceptively similar trademarks I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 31 of 38 shows the malafides of the Defendants. In N.R. Dongre (supra), the Supreme Court while affirming the judgment of a Division Bench of Delhi High Court held as under:

"15. The findings of the learned Single Judge, as affirmed on appeal by the Division Bench, are:

(i) Long prior user of the name of „WHIRLPOOL‟ by Plaintiff 1 and a trans-border reputation and goodwill extending to India to the use of that name;

(ii) Prior registration of that name even in India from 1956-57 to 1977 against the earliest claim by the Defendants from 1986 (the date of application for registration);

(iii) Grant of registration to the Defendants on 12-8-

1992, only on the ground of proposed user instead of actual user, which was opposed by the Plaintiffs and is subject to the outcome in the pending appeal;

(iv) No reliable evidence of the Defendants having marketed their washing machines for any considerable length of time prior to grant of the interlocutory injunction;

(v) Irreparable injury to the Plaintiffs' reputation and goodwill with whom the name of „WHIRLPOOL‟ is associated, because of the washing machines of the Defendants not being of the same standard and quality of performance as the Plaintiffs' machines;

(vi) On the other hand, no injury to the Defendants by grant of the injunction inasmuch as the Defendants' washing machines can be sold under the other names used earlier, with the removal and replacement only of I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 32 of 38 the small metallic strip which bears the offensive trade mark/name which includes „WHIRLPOOL‟; and

(vii) There is no justification to accuse the Plaintiffs of culpable delay, acquiescence and laches or abandonment so as to disentitle them from the relief of injunction.

It has also been held that there is no plausible explanation offered by the Defendants for recently adopting the mark „WHIRLPOOL‟ when business in washing machines was being carried out earlier in other names, which at this stage, is supportive of the plea of unfair trading activity in an attempt to obtain economic benefit of the reputation established by Plaintiff 1, whose name is associated with the mark „WHIRLPOOL‟. The Plaintiffs' conduct in opposing the Defendants' application for registration as soon as it was notified and persisting in the opposition by filing an appeal against the Registrar's order and then an application for rectification of the entry in the register on grant of the certificate and also filing the suit without delay is referred by the trial court as sufficient to suggest that there was no abandonment of the mark, acquiescence or laches by the Plaintiffs."

57. There is consensus of judicial opinion that a part of the trade mark which is likely to confuse the consumer will also amount to infringement of the trade mark. In De Cordova v. Vick Chemical Co., (1951) 68 RPC 103, the Plaintiffs were using the trade mark containing the words „Vick‟s VapoRub‟ as an essential feature registered in Jamaica. The Defendants used a similar label with words „Karsote Vapour Rub‟. It was held that the expression "VapoRub" had I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 33 of 38 become distinctive of the Plaintiffs‟ goods in Jamaica and action for infringement was held to be successful.

58. In M/s. Atlas Cycle Industries Ltd. v. Hind Cycles Limited, ILR 1973 Delhi 393, while dealing with two rival trademarks „Royal Star‟ and „Eastern Star‟ of the parties, the Division Bench of this Court held that the trade mark „Royal Star‟ adopted and used by the Defendant was similar to the Plaintiff‟s trade mark „Eastern Star‟.

59. In Himalaya Drug Company v. S.B.L. Limited, 2013 (53) PTC 1 (Del.), a Division Bench of this Court held as under:-

"25. After having considered the above mentioned decisions, it is clear to us that it is not the right test of a meticulous comparison of two marks, letter by letter and syllable by syllable. It is the person who only knows the one mark and has perhaps an impression, or imperfect recollection of it, who is likely to be deceived or confused. In fact it depends on first impression of a person. In case he is aware or familiar with both rival marks of the parties he will neither be deceived or confused. The degree of similarity between the two rival marks and which depends upon the first impression whether visual or phonetic and in case court finds that there is a risk of confusion which is the public interest should not be authorised. The question is merely the dispute of inter se between the parties but it is matter of right by the registered proprietor who got the exclusive rights to protect the same, otherwise, many competing marks would be available in the market in due course and uncertainty might happen in case the infringer is allowed to use similar mark."

I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 34 of 38

60. Further, it has been held that the ascertainment of an essential feature of a trademark can be judged even if a word forming a part of a trademark has come in trade to be used to identify the goods of the owner of the trademark. Even use of that part of the mark would amount to infringement of the mark itself as the part of the mark is likely to result into confusion. The likelihood of confusion or deception in such cases is not disproved by placing the 2 marks side by side and demonstrating how small the chance of error is by any customer who places his order for the goods with both the marks clearly before him, for orders are not often placed under such conditions. In most cases, the eye is not an accurate recorder of visual detail and marks are rather remembered by general impressions or by some significant detail than by photographic recollection of the whole. Hence, in De Cordova v. Vick Chemical Co., (1951) 68 RPC 103, the Defendants who used a similar label with words „Karsote Vapour Rub‟ to the Plaintiffs‟ label containing the words „Vick‟s VapoRub‟ were held guilty of infringement. Similarly, this Court in Himalaya Drug Company v. S.B.L. Limited, 2013 (53) PTC 1 (Del.) (DB), held the Defendant using the mark „Liv-T‟ similar to Plaintiff‟s mark „Liv. 52‟ guilty of infringement as the part of the mark „Liv‟ was similar. I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 35 of 38

61. For a Plaintiff to be entitled to the relief of ad interim injunction, the Plaintiff has to satisfy the triple test of strong prima facie case, balance of convenience and irreparable loss and injury in case the injunction sought for is not granted.

62. I have earlier given detailed reasons to demonstrate that the Defendants, particularly Defendant no. 1 has attempted to use or has actually used or has applied for registration of the trade marks which are similar or are deceptively or confusingly similar to the marks of which the Plaintiffs are the proprietors. Defendant no. 1 got registration of some of the marks as mentioned in para 20 of the application which were deceptively similar to the registered trademark of the Plaintiffs. Out of these, the trademark CAPTAIN WALKER, PETEWALKER and PETEWALKR have not been renewed by Defendant no. 1. As stated above, Defendant no. 1‟s mark KHODEY BLACK & WHITE, VAT 999, GUDNESS and BOND‟S GREEN LABEL are similar or confusingly or deceptively similar to the Plaintiffs‟ mark BLACK & WHITE, VAT 69, GUINNES and GREEN LABEL respectively. It is also established that the Defendants have also been using or have adopted deceptively or confusingly similar marks to the marks of the third parties which have I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 36 of 38 been opposed by them. Hence, the Plaintiffs have established a strong prima facie case in their favour.

63. As far as question of irreparable loss and injury is concerned, because of the use of the deceptively or confusingly similar trademarks to those of the Plaintiffs, the Defendants are not only causing financial loss to the Plaintiffs but have also caused immense loss to the Plaintiffs‟ reputation. Although, Defendant no. 1 is an old company dealing in liquor and alcohol, yet no reason has been given by Defendant no. 1 for adopting the marks similar to the trademark of the Plaintiffs. Thus, it is also clear that there will be irreparable loss and injury if the injunction sought is not granted.

64. Balance of convenience also tilts in favour of the Plaintiffs as the Plaintiffs are entitled to the protection of their trademarks so that the same are not diluted by unwarranted use by the Defendants or third parties.

65. The Plaintiffs, therefore, have been able to make out a case for grant of ad interim injunction in their favour. The application is disposed of with grant of ad interim injunction in favour of the Plaintiffs and against the Defendants restraining them from: I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 37 of 38

(i) either jointly or severally using or asserting any right to use any of the trademarks mentioned in paras 5 to 16 of the plaint or any other trademark specifically mentioned in para 20 of the plaint or any other trademark similar to any trademark of any of the Plaintiffs, till the disposal of the suit; and

(ii) from passing of the goods as the goods of the Plaintiffs with the trademark KHODEY BLACK & WHITE, VAT 999, GUDNESS, BOND‟S GREEN LABEL, CAPTAIN WALKER, PETEWALKER, PETEWALKR and NOF specifically mentioned in para 20 of the application (I.A. No. 16758/ 2010) or any other trademark similar to the trademarks of the Plaintiffs as mentioned in paras 5 to 16 of the plaint, till the disposal of the suit.

CS (OS) No. 2510/ 2010

66. List for admission/ denial of documents before the Joint Registrar on 15.10.2014.

(G.P. MITTAL) JUDGE SEPTEMBER 03, 2014 vk/pst I.A.s No. 16758/2010 and 1908/2012 in CS (OS) No. 2510/ 2010 Page 38 of 38

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