LOWENBRAU AG Vs. JAGPIN BREWERIES LTD

JUDGEMENT

(1.) THIS Order will dispose of the application for interim injunction, I.A. No. 11355/2007 and the application for vacation of the ex parte interim injunction order, IA No. 13772/2007. CS(OS) NO. 1810/2007.

(2.) LOWENBRAU AG and InBev India International Pvt. Ltd. (hereinafter collectively referred to as the plaintiffs, for short) have filed the present suit for permanent injunction, rendition of accounts, mandatory injunction in form of delivery up against Jagpin Breweries Ltd and Lowenbrau Buttenheim (hereinafter collectively referred to as the defendants, for short). The plaintiffs claim exclusive right to use the mark/word "LOWENBRAU", device of lion and seek a restraint order against the defendants from using the mark "LOWENBRAU", device of lion or any other trade mark or device mark identical or deceptively similar. By an ex parte injunction order dated 3rd October, 2007 the defendants have been restrained from manufacturing, selling and advertising under the mark/word "LOWENBRAU", device of lion or any other trade mark/device mark identical or deceptively similar to the said mark or device.

(3.) BOTH the plaintiff No. 1 and the defendant No. 2 claim substantial turnovers and sales in Germany and other third countries. There is also no dispute that the plaintiff No. 1 and defendant No. 2 are not presently involved in any litigation on the right to use the mark/word "LOWENBRAU" in any country except in India. Both parties agree that there was litigation in Germany in respect of right to use the mark/word "LOWENBRAU" which was decided more than 100 years back in 1903 in favour of the defendant No. 2. It was held that the mark/word "LOWENBRAU" cannot be monopolised as there were a number of breweries in Germany who had been using the said word/mark for a long time and therefore the mark/word "LOWENBRAU" cannot be used to differentiate beer of one brewery from another.