Full Text
HIGH COURT OF DELHI
Date of Decision: 18th April, 2023
THE BOEING COMPANY & ANR. ..... Plaintiffs
Through: Sh. Pravin Anand, Sh.Dhruv Anand, Ms.Udita Patro and Ms.Nimrat Singh, Advocates.
Through: None
JUDGMENT
1. The present suit has been filed seeking relief of permanent injunction restraining the defendants from infringing the trademarks and copyrights of the plaintiffs, passing off their goods as that of the plaintiffs and other ancillary reliefs.
BRIEF FACTS
2. The case set up by the plaintiffs in the plaint is that the plaintiff no.1, The Boeing Company, incorporated under the laws of Delaware, USA, is a leading aerospace company and the largest manufacturer of commercial jetliners, family of airplanes such as 737, 747, 767, 777, 787, boeing business jet range as well as military aircrafts. The plaintiff no.1 also provides cost competitive service solutions and financial solutions for its customers. The plaintiff no.1 operates its business in India through various subsidiaries and the plaintiff no.2.
3. The plaintiff no.1 is the third-largest defence contractor in the world and provides products and support services to its customers in 150 countries. The plaintiff no.1 is one of the largest exporters in the United States. The annual worldwide sales turnover along with the Indian turnover of the plaintiffs, for the past five years, is provided in paragraph 20 of the plaint. The annual Indian turnover of the plaintiffs in the year 2021 was Rs. 1171 crores.
4. The plaintiff no.1 owns a wholly dedicated domain name, www.boeing.com, created on 2nd September, 1986. Further, it also operates its India centric website at www.boeing.co.in to cater to the needs of its Indian market and consumers. The plaintiff no.1’s presence in India dates back to 1941, when Tata Airlines began flying two DC-2 airliners. The plaintiff no.1 has been a strong partner of India’s aviation sector for more than 75 years. Multiple Indian airlines such as Air India, Vistara and SpiceJet operates plaintiff no.1’s aircrafts.
5. The trademark ‘Boeing’ has been derived from the name of the founder of the plaintiff no.1 company, Mr. William Boeing, in the year
1916. The said trademark and the logo has been used by the plaintiff no.1 in India since 1997. The trademark ‘Boeing’ has no common parlance in Indian context and is therefore, distinctive of its services and business. The plaintiff no.1 is the sole owner and registered proprietor of the BANSAL trademark/logo worldwide including India. The registration details of the aforesaid trademark/logo are given in paragraph 15 of the plaint. The plaintiff also holds copyright registration in respect of the aforesaid trademark/logo in China.
6. Due to long and continuous use, the said trademark/logo has acquired vast goodwill and reputation on a global footing and are exclusively associated with the plaintiffs.
7. During the periodical market survey conducted by the plaintiffs in June 2021, the plaintiffs found about the infringing activities of the defendants no.1, 2 and 3. The defendant no.3 is the proprietor of the defendant no.1, Advance Technologies. The defendant no.2 is the sister concern of the defendant no.1 and is providing similar services as that of the defendant no.1.
8. The defendant no.1 is engaged in the business of providing engineering services and solutions in aerospace, defence, automotive, healthcare and energy. The defendant no.1 is using the mark (hereinafter ‘impugned mark’). The official website of the defendant no.1, www.advance-technologies.net, also displays the aforesaid mark. The defendant no.1 is also listed on online trade directories such as www.indiamart.com and www.tradeindia.com and various social networking websites. The impugned mark is also displayed at BANSAL the entrance of the premises of the defendant no.1 in Bangalore.
9. Pursuant to an investigation conducted by the defendants, it also came to the knowledge of the plaintiffs that the defendant no.3 is impersonating himself to be an employee of the plaintiffs. This shows that the defendants were aware of the rights of the plaintiffs in the impugned mark and misusing the same.
10. The plaintiffs issued legal notice to the defendant no.1 on 31st August,
2021. Notice was also issued to the defendant no.3 on 19th November, 2021. However, no response has been received by the plaintiffs.
PROCEEDINGS IN THE SUIT
11. This court, vide order dated 21st April, 2022, granted ex parte ad interim injunction in favour of the plaintiff under I.A. 6101/2022, restraining the defendants from using the impugned trademark/logo in relation to their services including services in the aerospace and defence sector. The relevant portion of the said order is set out below: “Accordingly, Defendants, their Directors, wholesalers, distributors, partners or proprietors, as the case may be, their officers, servants and agents, are hereby restrained from using as their trademark/logo or in any manner whatsoever, use the same in relation to any goods and services (including services in the Aerospace and Defence sector), amounting to infringement of the Plaintiffs' registered trademarks, in particular Trademark Registration Nos. 794656, 784659 and 1367223 for its mark, till the next date of hearing.” BANSAL
12. The matter was thereafter placed before the Joint Registrar on 29th July, 2022 for effecting service and completion of pleadings. The defendants no.1 and 2 were served on 1st June, 2022 and 11th July, 2022. The defendant no.3 has refused to receive summons and hence, deemed to be served.
13. The defendants have failed to enter appearance despite service. None of the defendants have filed written statements. Therefore, the right of the defendants to file written statements was closed vide order dated 10th February, 2023. On the same date, the interim order dated 21st April, 2022 was confirmed till the final adjudication of the present suit.
14. Subsequently, an application was filed on behalf of the plaintiffs for pronouncement of judgment and decreeing the suit in favour of the plaintiffs and against the defendants in terms of Order VIII Rule 10 of the CPC.
ANALYSIS AND FINDING
15. I have heard the counsel for the plaintiffs and perused the record of the case.
16. In the present case, the defendants have failed to appear before this Court despite service. Since the defendants have failed to enter appearance or even take any requisite steps to contest the present suit, despite having suffered an ad interim injunction order, it is evident that they have no defence to put forth on merits.
17. A comparison of the trademark/logo of the plaintiffs and the defendants is set out below: Plaintiff’s trademarks/logo Defendant’s trademark/logo BANSAL
18. The defendants have adopted the trademark/logo in its entirety and have merely added a second swoosh graphic element that does not mitigate the deceptive and confusingly similar appearance of the impugned mark. Further, the defendants have used blue and black colour combination in the impugned mark. The defendants are using the impugned trademark/logo in relation to services relating to aviation and defence sector, which are identical to that of the plaintiffs’.
19. The plaintiffs have also claimed copyrights infringement in as much as the aforesaid trademark/logo is an artistic work within the meaning of the Indian Copyrights Act, 1957.
20. From a perusal of the material on record, this Court is of the view that the defendants have been using impugned mark with a view to trade upon the established goodwill and reputation of the plaintiffs. By their aforesaid conduct, the defendants are infringing the trademark/logo of the plaintiffs, as also passing off their goods and services as that of the plaintiffs.
21. I am of the opinion that no purpose would be served by directing the plaintiffs to lead evidence by filing examination-in-chief by way of affidavit. Therefore, in my opinion, this is a fit case for pronouncement of Judgment and passing of decree against the defendants in terms of Order VIII Rule 10 of the CPC.
BANSAL
22. Based on the averments in the plaint and the discussion above, this Court is of the view that this is a fit case for granting relief of permanent injunction in favour of the plaintiffs and against the defendants. Accordingly, the defendants are restrained by way of permanent injunction from using as its trademark/logo in any manner whatsoever, including in relation to its goods and services or any other trademark/logo deceptively similar to the trademark/logo of the plaintiffs.
23. Further, a decree of permanent injunction is passed restraining the defendant no.3 from impersonating as an employee of the plaintiffs.
24. In so far as the reliefs of damages and cost prayed for in the plaint, the defendants neither replied to the legal notice, nor appeared before this Court. There can be no justification for using the impugned mark by the defendants, which is similar to that of the plaintiffs. Clearly, customers are being misled by the defendants and the entire effort is deliberate and dishonest. This amounts to dilution of the reputation and goodwill of the aforesaid trademark/logo of the plaintiffs and causing loss to the plaintiffs in business and reputation. The defendants have been making unlawful gains at the expense of the plaintiffs.
25. In view of the foregoing facts and circumstances, this Court is of the view that this is not a case of innocent adoption by the defendants. The Court cannot ignore such dishonest adoption of the plaintiffs’ trademark/logo by the defendants. Therefore, the suit is decreed in favour of the plaintiffs for Rs.3,00,000/- towards damages to be paid by the BANSAL defendants within four weeks.
26. The plaintiffs are also entitled to costs in the present suit. Accordingly, Rs.2,00,000/- is awarded to the plaintiffs as costs to be paid by the defendants within four weeks.
27. Accordingly, the application is allowed and the present suit is decreed against the defendants in terms of prayer clauses ‘i’, ‘ii’, ‘iii’, ‘iv’, ‘vii’ and ‘viii’ of the plaint.
28. Counsel for the plaintiff does not press for the reliefs contemplated in prayer clauses ‘v’ and ‘vi’ of the plaint against the defendants.
29. Decree sheet be drawn up.
30. All pending applications stand disposed of. AMIT BANSAL, J. APRIL 18, 2023 BANSAL