Anheuser Busch Inbev India Ltd. v. Jagpin Brewerise Limited

2. Whether the Plaintiff proves that by use of the impugned trade mark “COX 5001” in relation to beer, the Defendant is passing off its beer as and for the beer of the Plaintiff?

3. Whether the Defendant proves that Plaintiff has come to this Court by “suppressio veri” and with unclean hands?

4. Whether the Defendant proves that the numeral “5000” is common to the trade and is hence “publici juris” for use in sale of strong beer?

5. Whether the Defendant proves that the Plaintiff has consented to the use of the numeral “5001” by the Defendant in relation to Its strong beer?

6. Whether the Defendant proves that the Plaintiff has disclaimed exclusive rights in the numeral “5000” in respect of its registered trade mark “HAYWARDS 5000” bearing registration No. 436744 in Class 32 before the Trade marks Registry?

7. Whether the Plaintiff is entitled to damages or in the alternative profits earned by the Defendant by the use of the impugned trade mark “COX 5001”??

8. Whether the Plaintiff is entitled to the reliefs of permanent injunction, as prayed?

9. What Order?

10. What Relief?

14. Subsequently, the Plaintiff’s documents in evidence were marked, and the Plaintiff’s Witness (PW-1) was cross-examined by the Defendant’s Advocate. Thereafter by an order dated 18th January, 2016, this Court recorded that the cross-examination of Plaintiff’s Witness (PW-1) was over, and that the Plaintiff was not leading further evidence, and also that the Defendant does not propose to lead any evidence.

15. In February 2019, the Defendant filed Notice of Motion No. 533 of 2019 in the present Suit for stay of the Suit under the provisions of Section 124 of the Trade Marks Act, 1999. Thereafter, sometime in July 2019, the Defendant took out Chamber Summons No. 859 of 2019 in the Suit, seeking amendment of the Written Statement.

16. Between the years 2019 and 2024, the aforesaid Notice of Motion and Chamber Summons came up for hearing on multiple occasions, and ultimately, both were dismissed for want of prosecution vide an order dated 8th August, 2024.

17. The Suit then came up for final hearing on 3rd January 2023, 26th August 2024, 9th June 2025, 24th June 2025, and 3rd November 2025, and on each of the said dates, none appeared on behalf of the Defendant. This Court, vide the order dated 3rd November 2025, listed the Suit for final hearing on 13th November 2025 and had directed the Plaintiff’s Advocates to give notice of this date to the Defendant. Accordingly, the Plaintiff gave notice of the aforesaid date of hearing to the Defendant. The Plaintiff has also tendered an Affidavit of Service proving that the notice of the aforesaid hearing and the previous order dated 3rd November 2025 were duly served upon the Defendant. Despite this, the Defendant has not appeared.

18. It was thus that the matter was taken up for final hearing. Submissions of Mr. Kane on behalf of the Plaintiff

19. Mr. Kane at the outset pointed out that the Defendant had, in the written statement, inter alia, taken the following defences (i) that the Defendant adopted the impugned trade mark “COX 5001” sometime in 2007 and has been using the same in respect of the impugned goods since then; (ii) that the rival marks, i.e., “HAYWARDS 5000/FIVE THOUSAND” and “COX 5001”, are dissimilar; (iii) that the Plaintiff’s label mark “HAYWARDS 5000" registered under No. 436744 in Class 32 has never been used by the Plaintiff and that the Plaintiff has abandoned the said registered label mark

(iv) that the Plaintiff cannot claim any right in respect of the numeral “5000” and that the numeral “5000” is common to the trade (v) that the registration of label mark “HAYWARDS 5000” under No. 436744 in Class 32 does not grant the Plaintiff any exclusive right over the numeral “5000” and that the said numeral “5000” has been disclaimed (vi) that the Plaintiff has suppressed that there are other marks with the numeral “5000” registered with the Trade Marks Registry (vii) that the Plaintiff has suppressed that the Plaintiff and its predecessors have filed other applications for registration of the trade mark “5000” in Class 32, (viii) that the Plaintiff has consented to the use of the impugned trade mark “COX 5001” by the Defendant and (ix) that the Plaintiff is estopped from making any claim against the numeral “5001” used by the Defendant in view of the statement made by the Plaintiff in paragraph 17 (b) of the Plaint in its earlier Suit No. 2510 of 2006.

20. Mr. Kane submitted that while the Defendant had taken the aforesaid contentions in the written statement, the Defendant had not, despite being given multiple opportunities, led any evidence in support of the case pleaded in the written statement.

21. Mr. Kane then made the following submissions, issue-wise. Issue No. 1 “(1). Whether the Plaintiff proves that by the use of the impugned trade mark ‘COX 5001’ in relation to beer, the Defendant has infringed the Plaintiff’s registered trademark Nos. 436744 and/or 1521743, both in

22. Mr. Kane submitted that the Plaintiff is the registered proprietor of both the label mark “HAYWARDS 5000” and the word mark “FIVE THOUSAND” in Class 32 in respect of “beer”. He pointed out that the Defendant’s application for cancellation of the Plaintiff’s registration of the label mark was dismissed by the IPAB vide a detailed order which remained unassailed by the Defendant. He submitted that to the best of the Plaintiff’s knowledge, the Defendant has not disputed the Plaintiff’s registration of the word mark “FIVE THOUSAND”. He thus submitted that the Plaintiff, by virtue of the said registrations, had the statutory right to the exclusive use of the registered trade marks in respect of “beer”.

23. Mr. Kane then submitted that the Plaintiff’s mark is a composite label comprising the word “HAYWARDS” together with the numeral “5000”, and that both elements constitute the distinctive, essential, and leading features of the label mark. He further pointed out that Section 28 of the Trade Marks Act, 1999, confers upon the registered proprietor the exclusive right to use the registered trade mark. He thus submitted that the Plaintiff’s registration of the label mark affords a protection to the Plaintiff in respect of all its essential and leading features, including the numeral “5000”. He thus submitted that the Plaintiff was therefore statutorily entitled to restrain any person from using an identical or deceptively similar mark.

24. Mr Kane then pointed out that the Defendant’s impugned trade mark “COX 5001”, of which the numeral “5000” is the leading and essential feature, was conceptually, close and deceptively similar to the Plaintiff’s label mark “HAYWARDS 5000” since the same contained the numeral “5000” as its leading, essential and memorable feature. He also pointed out that the rival goods are identical, and it was thus that the Defendant had, by the use of the impugned trade mark in respect of identical goods, i.e., “beer”, infringed both the Plaintiff’s label mark and the Plaintiff’s word mark.

25. Mr. Kane then submitted that the Defendant’s contention that there cannot be any case of infringement, as the goods of the Defendant are being sold under the trade mark “COX 5001”, which is distinct and/or distinguishable from the Plaintiff’s trade mark “HAYWARDS 5000”, was plainly unstatable. He submitted that even a cursory look at the impugned trade mark made clear that the leading, essential and memorable part of the impugned trade mark is the numeral “5001”, which is closely and deceptively similar to the Plaintiff’s registered word mark “FIVE THOUSAND” and the Plaintiff’s registered label mark “HAYWARDS 5000”.

26. Mr. Kane then pointed out that this Court had, in several decisions, held “5000” to be the leading and essential feature of the Plaintiff’s said trade mark “HAYWARDS 5000”. In support of his contention he placed reliance upon the following decisions Shaw Wallace and Co. Ltd. & Anr. v. Mohan Rocky Spring Water Breweries Ltd.3; SKOL Breweries Ltd. v. Som Distilleries & Breweries Ltd[4]; SKOL Breweries Ltd. v. Fortune Alcobrew Pvt. Ltd.[5] and Sabmiller India Ltd. v. Jagpin Breweries[6].

27. Mr. Kane submitted that infringement is made out where a Defendant is shown to have adopted the essential feature of a registered trade mark. He pointed out that, in assessing similarity, the Court must look at the overall and broad impression conveyed by the rival marks, rather than engage in a minute, side-by-side comparison. The focus, he submitted, must be on the essential, dominant, and memorable features of the mark, and not the minor variations, since it was the essential and dominant features which remained in the minds of consumers. In support of his contention, he placed reliance upon the following decisions Reckitt & Colman of India Ltd. vs Wockhardt Ltd.7, Pidilite Industries Limited v. Jubilant Agri & Consumer, Jagdish Gopal Kamath v. Lime & Chilli Hospitality Service[9] and James Chadwick & Bros. Ltd. v. The National Sewing Thread Co. Ltd.10

28. Mr. Kane then submitted that the Defendant’s contention that the Plaintiff had never used and had therefore abandoned its registered label mark 3 MIPR 2007 (2) 185

“HAYWARDS 5000” was wholly misconceived. He submitted that the Plaintiff had been openly, continuously, and exclusively using the trade mark “HAYWARDS 5000” registered under No. 436744, as well as several other label marks in which the leading, prominent, essential, and distinctive feature is the expression “HAYWARDS 5000”. He submitted that these label marks were, in substance and overall commercial impression, the same as or substantially similar to the registered label “HAYWARDS 5000”. He then placed reliance upon Section 55 of the Trade Marks Act, 1999, to point out that such use of a trade mark was specifically recognised. He also placed reliance upon the decision of this Court in SKOL Breweries Ltd. v. Som Distilleries & Breweries Ltd., particularly paragraphs 19 and 20, which affirm that the use of a mark in a modified or updated label does not amount to non-use so long as its essential features remain intact. He thus submitted that the allegation of abandonment was therefore entirely untenable both in fact and in law.

29. Mr. Kane then submitted that the Defendant’s adoption of the impugned mark was plainly dishonest and undertaken solely with the intention of exploiting the Plaintiff’s tremendous reputation and goodwill. He pointed out that the Defendant had no plausible reason to adopt the numeral “5001” except to trade upon the established market recognition of the Plaintiff’s well-known mark, “HAYWARDS 5000”. He further submitted that the Defendant was under a duty to conduct a search of the Register of Trade Marks prior to adopting the impugned mark, and had the Defendant done so, the same would have revealed the Plaintiff’s registrations. He submitted that the Defendant’s failure to undertake even this basic due diligence, coupled with the adoption of a mark so closely approximating the Plaintiff’s, made clear that the Defendant’s conduct was tainted with dishonesty and mala fides. In support of his contention that the adopter of a trade mark is obliged to carry out a search of the Trade Marks Register, Mr. Kane placed reliance upon the decision of the Division Bench of this Court in Bal Pharma Ltd. v. Centaur Laboratories Pvt. Ltd. & Anr.11, as well as a recent judgement of this Court in Petrofer Chemie H.R. Fischer GMBH & Co. KG. and Anr. v. United Petrofer Limited12.

30. He thus submitted that the Plaintiff had successfully proved that the Defendant has infringed the Plaintiff’s label mark as well as the word mark by using the impugned trade mark “COX 5001”. Issue No. 2 “(2) Whether the Plaintiff proves that by the use of the impugned trademark ‘COX 5001’ in relation to beer, the Defendant is passing off its beer as and for the beer of the Plaintiff?”

31. Mr. Kane submitted that the Plaintiff had, in addition to continuously and extensively using the label mark “HAYWARDS 5000” since its adoption in 1983, also widely advertised and publicised the said mark across India. He pointed out that the Plaintiff’s beer was marketed and sold throughout the country through a large and well-established distribution network built up by the Plaintiff/the Plaintiff’s predecessors. He then also pointed out that, owing to decades of substantial sales and extensive advertising in leading

12 [Bombay High Court] Order in IA. No. 2143 of 2021 in COMIP Suit No. 275 of 2021 publications, periodicals, and other media, members of the trade and public have come to associate the label mark "HAYWARDS 5000" and, in particular, the numeral "5000" exclusively with the plaintiff.

32. He then submitted that there could be no doubt as to the fact that the Plaintiff's label mark had acquired tremendous goodwill and reputation. He pointed out that this Court had in several decisions held that the numeral “5000” was associated with the Plaintiff’s beer and that the Delhi High Court had in the case of Shaw Wallace & Co. Ltd. & Anr. v. Superior Industries Ltd expressly held that the Plaintiff’s mark “HAYWARDS 5000” had been expressly recognised as a well-known trade mark. He submitted that the Plaintiff’s trade mark had also thereafter been included in the list of well-known marks maintained by the Registrar of Trade Marks.

33. Mr. Kane submitted that the Defendant’s impugned trade mark, “COX 5001”, being deceptively similar to the Plaintiff’s well-known mark, “HAYWARDS 5000”, would necessarily result in misrepresentation and confusion, and the Defendant, by adopting and using the numeral "5001" for identical goods, was leading members of the public and the trade to believe, wrongly, that the Defendant’s beer originates from, or is in some manner connected with, the Plaintiff.

34. Mr. Kane further submitted that although the Defendant had claimed use of the impugned trade mark “COX 5001” since 2007, the Defendant had not produced a single document to substantiate this alleged user. He pointed out that the Defendant had also failed to offer any credible or rational explanation for adopting the impugned mark, particularly the numeral “5001”, which is the dominant, prominent and essential feature of the Defendant’s mark.

35. He submitted that the Defendant was using the mark “COX 5001” in relation to identical goods, namely beer, and that even a cursory look at the photographs of the Defendant’s bottles alongside the Plaintiff’s shows that the numeral “5001” is the dominant and most eye-catching element of the impugned mark. The comparison of Plaintiff’s and Defendant’s products is as follows: Plaintiffs’ Product - Defendant’s Product - He pointed out that, when compared with the Plaintiff’s mark, “HAYWARDS 5000”, in which the numeral “5000” constitutes the leading, essential, and memorable feature, the Defendant’s adoption of the closely corresponding numeral “5001” is conceptually similar and plainly deceptive.

36. Mr. Kane then also pointed out that the impugned mark is applied on round bottles, and when viewed from certain angles, the numeral 5001 appears visually similar to 5000, thereby enhancing the likelihood of deception. He thus submitted that in such circumstances, a consumer encountering the Defendant’s beer is bound to be placed in a state of wonderment and is likely to be misled into believing that the Defendant’s product emanates from, or is associated with, the Plaintiff or constitutes an extension of the Plaintiff’s well-known “HAYWARDS 5000” beer.

37. He submitted that it is a settled principle of trade mark law that the Plaintiff is not required to prove actual instances of confusion, and a likelihood of confusion or deception is sufficient to prove passing off. In support of his contention, he placed reliance upon the decision of the Hon’ble Supreme Court in Rustom & Hornsby Ltd. v. Zamindara, paragraph 6 of which holds as follows:

38. He submitted that it was therefore clear that the Defendant is passing off its beer as and for the beer of the Plaintiff by using the impugned trade mark. Issue Nos. 3, 4, 5 and 6 “(3) Whether the Defendant proves that the Plaintiff has come to this Court by “suppressio veri” and with unclean hands? (4) Whether the Defendant proves that the numeral ‘5000’ is common to the trade and is hence ‘public juris’ for use in sale of beer? (5) Whether the Defendant proves that the Plaintiff has consented to the use of the numeral “5000” by the Defendant in relation to strong beer? (6) Whether the Defendant proves that the Plaintiff has disclaimed exclusive rights in the numeral “5000” in respect of its registered trade mark “HAYWARDS 5000” bearing registration No. 436744 in Class 32 before the Trade marks Registry?

39. Mr. Kane then submitted that the burden of proving Issue Nos. 3 to 6 lay squarely upon the Defendant and that the Defendant had not led any evidence whatsoever in the matter, nor were there any admissions by the Plaintiff's witness in cross-examination by which these Issues could be deemed to have been answered in favour of the Defendant. He submitted that all these Issues would therefore necessarily have to be answered in the negative.

40. In dealing with Issue No. 3, Mr. Kane submitted that the Plaintiff had not at any given time suppressed any material fact or made any false representation to this Court. He pointed out that this had been affirmed by this Court in the order and judgement dated 6th February, 2014, while making Notice of Motion under No. 92 of 2012 absolute. He then pointed out from the said order that this Court had categorically rejected the Defendant’s claim, stating that there is no rule that the Plaintiff has to disclose the entire history of its trade marks while filing a suit before any Court especially when the same are irrelevant. He pointed out that the order dated 6th February, 2014, was not challenged by the Defendant and that the same had thus attained finality.

41. In dealing with Issue No. 4, Mr. Kane pointed out that the IPAB, by its order dated 14th September 2011, had rejected the Defendant’s Rectification Application and thereby decided the issue squarely in favour of the Plaintiff. He further pointed out that, despite being afforded several opportunities, the Defendant had not produced any evidence whatsoever to substantiate its assertion that the numeral “5000” was commonly used in respect of beer. Mr. Kane submitted that it was well settled that the burden of proving that a registered trade mark is common to the trade lies entirely on the party alleging such common usage, which he submitted that the Defendant had wholly failed to do. He then placed reliance upon the decisions in the case of Pidilite Industries Ltd. v. S.M. Associates & Ors.14 and Corn Products Refining Co. v. Shangrila Food Products Ltd.15, to point out that the onus of establishing that a mark or any of its elements have become common to the trade rests upon the party raising that plea.

42. In dealing with Issue No. 5, Mr. Kane submitted that the Defendant’s contention that the Plaintiff was aware of the Defendant’s use of the impugned mark since 2011 and had filed Suit No. 652 of 2011 before the

Madras High Court was entirely misplaced. He pointed out that the Suit before the Madras High Court concerned only the infringement of the Plaintiff’s registered bottle design under No. 223479 and had nothing to do with the Defendant’s use of the impugned trade mark. The filing of that Suit, therefore, cannot be construed as the Plaintiff having consent to the Defendant’s use of the impugned mark. Mr. Kane further submitted that this contention was also belied by the Plaintiff’s conduct since the Plaintiff had issued a cease-and-desist notice as far back as 18th January 2005, calling upon the Defendant to cease using the impugned mark. Moreover, immediately upon becoming aware of the Defendant’s use of the impugned trade mark, the Plaintiff filed the present suit in 2012. These actions, he submitted, demonstrate that the Plaintiff has consistently opposed the Defendant’s use and has never consented to it.

43. Mr. Kane then, while dealing with Issue No. 6, submitted that the Defendant’s contention that (i) the Plaintiff’s registration of the label mark under No. 436744 in Class 32 does not confer any exclusive right over the numeral “5000”, and (ii) the numeral “5000” have been disclaimed were both wholly misconceived and untenable. He submitted that the trade mark “HAYWARDS 5000” is inherently distinctive, and it was precisely on this basis that it was granted registration and entered on the Register of Trade Marks. He reiterated that the Defendant’s challenge to this registration had already been rejected by the IPAB through a detailed order, which affirmed the validity of the Plaintiff’s mark. He further pointed out that, during examination of the Plaintiff’s application for registration of trade mark No. 436744 in Class 32, the Registrar of Trade Marks did not raise any objection in respect of the numeral “5000”, and thus the question of the Plaintiff being required to disclaim the numeral “5000” did not arise at all. Mr. Kane submitted that the condition imposed by the Registrar, i.e., that “registration of this trade mark shall give no right to the exclusive use of all descriptive matter appearing on the label”, was plainly directed at the descriptive expression “SUPER STRONG BEER” appearing on the label and did not in any manner pertain to the numeral “5000”.

44. Mr. Kane then also submitted that it was well settled that whenever the a trade mark, the Registrar specifically provides for the same, and in the absence of any such specific disclaimer, a general disclaimer cannot be equated with a specific disclaimer for the numeral “5000”. In support of his contention he placed reliance upon the decision of this Court in the case of SKOL Breweries Ltd. v Som Distilleries & Breweries Ltd.

45. Mr. Kane further submitted that, while assessing the rival marks for the purpose of infringement, this Court must also consider the so-called disclaimed feature, particularly because consumers and traders are entirely unaware of any disclaimer entered in the Register. In support of this submission, he placed reliance upon the decision of this Court in Pidilite Industries Ltd. v. S.M. Associates & Ors., to point out that disclaimers do not influence public perception of a mark. He submitted that, in any event, the Plaintiff is also the registered proprietor of the word mark “FIVE THOUSAND”, to which the impugned mark “COX 5001” is conceptually, closely, and deceptively similar and that it was well-settled that the existence of a disclaimer does not affect the Plaintiff’s claim in passing-off. In support of his contention he placed reliance upon the decision of this Court in Shaw Wallace v. Castle Douglas Industries Ltd. & Mohan Rocky Mr. Kane therefore submitted that the Defendant had failed to establish that the Plaintiff had disclaimed exclusive rights in the numeral “5000” in respect of the label mark “HAYWARDS 5000”. Issue No. 7 “(7). Whether the Plaintiff is entitled to damages or in the alternative profits earned by the Defendant by the use of the impugned trade mark “COX 5001””?

46. In dealing with Issue No. 7, Mr. Kane submitted that by reason of the aforesaid acts of infringement and passing off, the Defendant has caused loss and damage to the Plaintiff, which the Plaintiff estimates at Rs.20,00,000/- (Rupees Twenty Lakhs Only). He thus submitted that the Plaintiff was entitled to the damages as estimated by the Plaintiff or then such other sum as this Court may deem fit and proper. He submitted that in the alternative, the Plaintiff is entitled to all the profits earned by the Defendant by its use of the impugned trade mark. Issue No. 8 “(8). Whether the Plaintiff is entitled to the reliefs of permanent injunction, as prayed?” 16 [IPLR] 2007 July 2021

47. Mr. Kane then submitted that the Plaintiff had successfully proved that the Defendant had infringed both the label mark and the word mark and that the Defendant was passing off its beer as being that of the Plaintiff by using the impugned marks in respect of identical goods. He further submitted that the Defendant had also failed to establish that the numeral ‘5000’ is common to the trade or is public juris in relation to “beer”. Reasons and Conclusion

48. After having heard Mr. Kane, Learned Counsel for the Plaintiff, and having perused the evidence on record and the case law upon which reliance has been placed, I find as follows: A) At the outset, it is crucial to note that though the Defendant has taken several defences in the written statement, including prior adoption of the impugned mark, dissimilarity of the rival marks, non-use or abandonment by the Plaintiff, that the numeral “5000” is common to the trade, and suppression of material facts, consent, and estoppel, the Defendant has chosen not to lead any evidence to substantiate any of the pleas taken in the written statement. B) Conversely, the Plaintiff has established, through certified copies obtained from the Register of Trade Marks, that the Plaintiff is the registered proprietor of (i) the label mark “HAYWARDS 5000” (having Registration No. 436744) and (ii) the word mark “FIVE THOUSAND” (having Registration NO. 1521743), both being in Class 32 in respect of beer. Crucially, the rectification application filed by the Defendant to the Plaintiff’s label trade mark “HAYWARDS 5000” was dismissed by the IPAB vide a detailed order dated 14th September 2011, which order was never challenged by the Defendant. Equally crucial is the fact that the Defendant has not disputed or challenged the validity of the registration for the word mark “FIVE THOUSAND”. Thus, the Plaintiff’s registration in respect of both the label mark and the word mark stands admitted and unimpeached, entitling the Plaintiff to the statutory protection afforded to the registered proprietor of a trade mark under Sections 28 and 29 of the Trade Mark Act. C) The Plaintiff’s label mark is a composite mark in which both the word “HAYWARDS” and the numeral “5000” constitute essential, distinctive and leading features. Under Section 28 of the Trade Marks Act, the Plaintiff, as registered proprietor, enjoys the exclusive statutory right to use these marks for beer and to prevent others from using identical or deceptively similar marks and infringing the Plaintiff’s statutory rights. From the evidence which has been placed before me, I am satisfied that the Plaintiff has established continuous, open and extensive use of the label mark “HAYWARDS 5000” since 1983. The evidence produced by the Plaintiff also bears out that the Plaintiff has consistently been using the label which is substantially identical or materially similar to the registered label. Thus, under Section 55, such use constitutes valid use of the registered mark. D) A plain look at the impugned mark “COX 5001” leaves no manner of doubt that the numeral “5001” is its dominant and memorable feature. The Defendant is using the impugned mark in respect of the very same goods, i.e., beer, for which the Plaintiff uses its registered trade marks. A visual comparison of the rival marks shows that the numeral forms the most prominent and striking element in both. The decisions in Shaw Wallace v. vs Superior Industries Ltd., SKOL Breweries v. Som Distilleries & Breweries Ltd and SABMiller v. Jagpin Breweries have all held that “5000” constitutes the essential and distinctive feature of the Plaintiff’s label mark. E) The fact that the Defendant uses “5001” instead of “5000” makes no difference. It is well settled that what matters is the recollection of an average consumer with imperfect recollection. The average consumer, with imperfect recollection in these facts, is most likely to be left in a state of confusion and wonderment as to the origin of the Defendant’s beer and associate the same with that of the Plaintiff’s. Thus, merely replacing “5000” with “5001” would make no difference and would not reduce the likelihood of confusion. F) It is well settled that the test for infringement requires the Court to assess the overall and broad impression of the marks rather than a meticulous, side-by-side comparison. What is to be considered are the essential, dominant and memorable features of the rival marks and not the minor differences in detail, as held in the case of Reckitt & Colman v. Wockhardt Ltd., Pidilite v. Jubilant Agri & Consumer Products Limited, Jagdish Kamath v. Lime & Chilli Hospitality Services and James Chadwick Bros. Ltd. v. The National Sewing Thread Co. Ltd. Applying the principles laid down in these decisions, on an examination of the rival marks, i.e., the Plaintiff’s label mark and the impugned mark, the Defendant has used “5001” in a manner that is deceptively similar to the Plaintiff’s registered trade mark. G) Furthermore, the circumstances also strongly suggest that the Defendant’s adoption of “5001” is dishonest. The Defendant has not provided any explanation for selecting the numeral “5001”, nor has it shown any independent reputation or market presence since 2007, as alleged. As held in Bal Pharma v. Centaur and Petrofer v. United Petrofer, a party adopting a mark must first conduct a trade mark registry search, failing which dishonesty is inferred. The Defendant has not led any evidence which would support honest adoption, nor has the Defendant shown the basis on which it had adopted “5001”. It is thus clear that the Plaintiff’s mark being a well-recognised trade mark and entered into the registered trade marks, the Defendant has in a calculated manner tried to come as close to the said trade mark only in an attempt to ride on the Plaintiff’s immense reputation and goodwill. H) The Defendant’s plea of non-use or abandonment is untenable. The Plaintiff has produced evidence which establishes long and continuous use of the trade mark under the “HAYWARDS 5000” label. The Plaintiff’s reliance upon the decision of this Court in SKOL Breweries v. Som Distilleries, is entirely apposite since the said decision holds that use of labels substantially similar to the registered label constitutes use of the registered mark. In these circumstances, the essential feature of the Plaintiff’s registered marks having been used by the Defendant in respect of identical goods, the Plaintiff has established a case of infringement in respect of both the Plaintiff’s trade marks. I) On the issue of passing off, the Plaintiff has led clear and cogent evidence establishing that the Plaintiff has been using trade mark HAYWARDS 5000 or such similar marks continuously, openly, and extensively since 1983. The Plaintiff has also demonstrated that the mark has been widely advertised and publicised across India and, crucially, included in the list of well-known trade marks maintained by the Registrar of Trade Marks. Both this Court in Shaw Wallace and Co. Ltd. & Anr. v. Mohan Rocky Spring Water Breweries Ltd. and the Delhi High Court in Shaw Wallace & Co. Ltd. v. Superior Industries Ltd has also taken judicial note of the fact that the Plaintiff’s trade mark HAYWARDS 5000 enjoys a high degree of recognition across India. Through decades of uninterrupted commercial use, extensive nationwide distribution, and sustained promotion, the Plaintiff has therefore built substantial goodwill and reputation in its mark. J) As already noted in paragraph E. above, the Defendant’s adoption and use of the mark COX 5001 for identical goods (beer), incorporating the numeral “5001” as its dominant feature, is inherently likely to mislead and confuse the average consumer. The numeral “5001” is conceptually and visually similar to “5000”, which constitutes the essential and prominent feature of the Plaintiff’s trade mark. Thus, the average consumer, with imperfect recollection, encountering the Defendant’s product in the market is likely to be left in a state of wonderment or confusion as to the origin of the goods and to be led to believe that the same emanate from or have a connection with the Plaintiff. Given the Plaintiff’s immense goodwill and reputation, such confusion and misrepresentation would lead to a real and tangible likelihood of damage to the Plaintiff’s goodwill, inasmuch as consumers or persons in the trade are likely to associate the Defendant’s beer with that of the Plaintiff. K) It is well settled that, in an action for passing off, the Plaintiff is not required to prove actual confusion, and it is sufficient to establish a likelihood of confusion or deception. The Hon’ble Supreme Court held in Rustom & Hornsby Ltd. v. Zamindara Engineering Co., that the real test to establish passing off is the overall impression created on the average consumer with imperfect recollection, and a Plaintiff is not required to show specific instances of deception if such deception is reasonably likely. As noted in (I) above, such likelihood is clearly established in the present case. The photographs of the Defendant’s bottles show that the numeral “5001” is the single most prominent and eye-catching element of the impugned mark, and its resemblance to Plaintiff use of the numeral “5000” is striking. This similarity is further accentuated by the fact that both marks are used on round bottles, such that when viewed from different angles, the numeral “5001” can visually resemble “5000”, thereby making the likelihood of confusion apparent. L) The burden of proving Issues 3, 4, 5 and 6 was on the Defendant. The Defendant, however, did not lead any evidence, nor has the Plaintiff's witness in evidence admitted the case of the Defendant on the basis of which any of these Issues could be said to have been proved. In any event, the defences raised in the written statement are plainly untenable. The allegation of suppression of material facts by the Plaintiff had already been rejected by this Court by its order dated 6th February 2014. The contention that the numeral “5000” is common to the trade stood rejected by the IPAB in its order dated 14th September 2011 dismissing the Defendant’s rectification application. The suggestion that the Plaintiff had consented to the Defendant’s use of “5001” is inconsistent with the cease-and-desist notice issued by the Plaintiff and the filing of the present Suit. The plea that the Plaintiff’s registration carried a disclaimer is contrary to the record. Also, the condition imposed by the Registrar was only a general condition and provided that the registration would not confer exclusive rights over descriptive matter appearing on the label, which applied to the words “SUPER STRONG BEER” and not to the numeral “5000”. No evidence was led to suggest to the contrary. Thus, the decision of this Court in SKOL Breweries v. Som Distilleries which inter alia holds that where the Registrar intends to impose a specific disclaimer, it must be expressly recorded, and the decision in the case of Shaw Wallace v. Castle Douglas which holds that a disclaimer does not affect a passing-off claim and is entirely apposite in the facts of the present case. M) Insofar as the claim for damages of Rupees twenty lakhs is concerned, I find that the Plaintiff has not led any evidence whatsoever to establish the quantification of the said amount or to demonstrate any actual loss suffered. No financial statements, sales figures, comparative market data, consumer complaints, or any material showing diversion of trade have been placed on record. Equally, the Plaintiff has not produced any evidence of the profits earned by the Defendant so as to sustain an order for rendition of accounts or award of profits. It is well settled that damages are not awarded as a matter of course and must be specifically proved. In the absence of any such proof, the Plaintiff’s claim for damages cannot be granted. The present Suit, being a Commercial Suit, Section 35 of the Civil Procedure Code, 1908, as amended by Section 16 of the Commercial Courts Act, 2015 would apply, entitling the Plaintiff to an order of costs towards the legal fees and all other expenses incurred in connection with the proceedings. Hence, having due regard to the Defendant’s conduct in the present matter, the infringement established on record, and the Defendant’s persistent abstention from the proceedings despite service, the Plaintiff is entitled to an order of permanent injunction and to costs.

49. In the aforesaid backdrop, I proceed to now answer the Issues as follows: i. For the reasons recorded in paragraphs (B) to (H) and (J) hereinabove, Issue No. 1 is answered in the affirmative. ii. For the reasons recorded in paragraphs (I) and (K) hereinabove, Issue No. 2 is answered in the affirmative. iii. For the reasons recorded in paragraphs (A) and (L) hereinabove, Issue Nos. 3, 4, 5 and 6 are answered in the negative. iv. For the reasons recorded in paragraph (M) Issue No. 7 is answered in the negative and Issue No. 8 is answered in the affirmative.

50. Thus the Suit is therefore decreed and disposed of in terms of prayer clause (a) and (b) which read thus:. “(a) that the Defendant by itself, its directors, servants, agents, stock distributors and dealers, be restrained by an order and permanent injunction of this Hon'ble Court from infringing the Plaintiff's registered trade mark bearing Nos. 436744 and/or 1521743 both in class 32 by using in relation to beer the trade mark "COX 5001" or any other trade mark containing numeral 5001 or any other trade mark deceptively similar to the Plaintiff's registered trade mark Nos. 436744 and/or 1521743 both in class 32 or in any other manner whatsoever; (b) that the Defendant by itself, its directors, servants, agents, stockists, distributors and dealers, be restrained by an order and permanent injunction of this Hon'ble Court from manufacturing, selling, marketing, distributing, trading, exhibiting for sale or advertising beer or the like goods bearing the trade mark "COX 5001" or any other trade mark containing numeral 5001 or any other trade mark deceptively similar to the Plaintiff's trade mark "HAYWARDS 5000", so as to pass off or enable others to pass off the Defendant's beer as and for beer of the Plaintiff or in any other manner whatsoever.”

51. The Defendant shall pay costs of Rs. 10,00,000/- to the Plaintiff. (ARIF S. DOCTOR,J.)