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26. It is submitted by the Plaintiff that the mark GOA was an essential feature of the mark NOVA GOA and therefore violates the rights of the Plaintiff.

.....Contd Plaintiff's BRIHAN'S DOCTOR (WORD PER SE) & BRIHAN'S DOCTOR BRANDY (LABEL) V/S Defendant's BRIHMA'S O RIG INAL DOCTOR BRANDY Plaintiff's Defendant's

27. It is submitted by the Defendant in the Written Statement that on 04.06.1976 BMSS applied for registration of the said trademark BRIHAN‟S DOCTOR BRANDY and claimed users since 01.06.1972. O n 01.02.1978, the Mark was advertised in the trademark journal with the disclaimer that the registration shall give no right to the exclusive use of the word DOCTOR. On 29.07.1978 the mark was registered in favour of BMSS. On 29.05.2006, the Plaintiff became the subsequent proprietor. It is further contended by the Defendant that the registration of the Mark is subject to the disclaimer of the word DOCTOR and the Plaintiff does not have the exclusive right to use the word DOCTOR.

BRIHMA'S ORIGINAL DOCTOR BRANDY

105. The case of the Plaintiff is that the Defendant is using the mark BRIHMA‟S ORIGINAL DOCTOR BRANDY which is very similar to the Plaintiff‟s mark BRIHAN‟S DOCTOR BRANDY.

106. On applying the test of an unwary purchaser of average intelligence and imperfect recollection and comparing the two conflicting mark, it is apparent that there is a great degree of similarity between the two rival marks in terms of their trade dress, get up, presentation, color scheme and layouts.

107. The words DOCTOR and BRANDY by itself may not be capable of protection as a trademark but when coupled with the mark BRIHAN‟S the mark prima facie becomes distinctive. The fact that the BMSS had adopted the word BRIHMA‟S as a prefix to the words ORIGINAL DOCTOR BRANDY shows that it was aware that it could not use the mark DOCTOR BRANDY with the prefix BRIHAN‟S as the same would be deceptively similar. The words BRIHAN‟S DOCTOR BRANDY and BRIHMA‟S ORIGINAL DOCTOR BRANDY are also deceptively similar.

(iv) NOVA GOA: The Defendant, is not restrained from using the trademark NOVA GOA without the prefix or suffix BRIHAN‟S and/or BRIHMA‟S in a getup, trade dress, style and label that is neither identical nor deceptively similar to that of the Plaintiff; and

(v) BRIHMA'S ORIGINAL DOCTOR BRANDY: The Defendant is restrained by way of an ad-interim injunction from directly or indirectly selling, manufacturing, offering for sale or in any manner dealing in any Alcoholic Beverage bearing the mark/label BRIHAN‟S DOCTOR BRANDY or BRIHMA‟S ORIGINAL DOCTOR BRANDY or from adopting/using any other i dentical or deceptively similar trademark/label. The Defendant however, is not restrained from using the words DOCTOR and/or BRANDY without the prefix or suffix BRIHAN‟S and/or BRIHMA‟S in a getup, trade dress, style and label that is not deceptively similar to that of the Plaintiff.