Full Text
HIGH COURT OF DELHI
Date of Decision: 31st October, 2022
GEETANJALI STUDIO PRIVATE LIMITED & ANR. ..... Plaintiff
Through: Mr. Manish Biala, Advocate.
(M:9810333571)
Through: None.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The Plaintiff- Geetanjali Studio Private Ltd. and Mr. Sumit Israni have filed the present suit seeking protection of their mark ‘GEETANJALI’ which is used for salon, beauty parlour, etc. The Plaintiff claims to be one of the well-known salons based out of Delhi specializing in hair dressing, styling and make-up services, catering to national and international customers and eminent personalities of the fashion industry. The marks of the Plaintiff are registered in various Classes in 44 and 47. The details of which are as under:
1. 1839130 42 13-07-2009 Registered and valid till 13-07-2029
2. 2216134 44 15-10-2011 and valid till 05-10-
3. 2497944 AHEAD 44 18-03-2013 and valid till 18-03-
4. 3407748 44 10-11-2016 and valid till 10-11-
5. 4115131 SUMIT ISRANI 44 12-03-2019 and valid till 12-03-
6. 4334328 UTOPIA BY GEETANJALI 44 31-10-2019 and valid till 31-10-
7. 4386183 TWEAK 44 23-12-2019 and valid till 23-12-
3. The Plaintiff claims to have more than 100 salons/franchises across the country with a turnover of more than 44 crores for the financial year 2019-20. The Plaintiff runs its chain of salons under two names, ‘GEETANJALI STUDIO’ and ‘GEETANJALI SALON’, catering to two different segments - the sales of which have been set out in the Plaint. The plaintiff also shows promotional expense of approximately Rs.[2] crores, spent on advertising and promotion of the said marks. The Plaintiffs have won several awards and accolades which are set out in paragraph 10 of the plaint. The website of the Plaintiff is https://geetanjalisalon.com and they also have an Instagram profile to promote their brand.
4. The Defendant is Mr. Rahul Mamtani who had obtained a license from the Plaintiff for running ‘GEETANJALI STUDIO’ in Vikas Puri. As per the plaint, the Defendant approached the Plaintiff in 2017 and entered into a franchise agreement dated 27th November, 2017. The Defendant was permitted to use the mark ‘GEETANJALI” as per the said agreement on a non-exclusive basis. The initial franchise fee of Rs.5,00,000/- was deposited. The Defendant was to also pay a monthly franchise fee of Rs.50,000/-. The case of the Plaintiff was that the franchise fee for some months was outstanding and, accordingly a demand letter was issued to the Defendant on 23rd February, 2019 to pay the outstanding amount of Rs.2,36,000/-. Again, further amount became due upon which a notice dated 24th December, 2019 was issued seeking payment of a sum of Rs.3,24,000/-. This amount continued to increase and as of 31st August, 2022 the due amount is stated to be Rs.4,49,000/-. Despite repeated follow ups the Defendant did not make the payment. The Plaintiff then terminated the franchise agreement vide notice dated 11th September, 2022 which was, further reiterated on several dates. Since the Defendant did not pay the franchise amount and did not also stop its use of the mark ‘GEETANJALI’, ‘GEETANJALI STUDIO’ and ‘GEETANJALI SALON’, the Plaintiff filed the present suit. Vide order dated 28th October, 2021, this Court had considered the matter and had granted an interim injunction in the following terms: “4. The plaintiffs have made out a prima facie case. The defendant, etc. are restrained from using the impugned trade mark GEETANJALI, GEETANJALI SALON, GEETANJALI STUDIO or any other mark that is identical or deceptively similar to the plaintiffs’ trade mark 'GEETANALL which is subject matter of registration Nos. 1839130, 2216134 and 3407748 till further orders.”
5. The Defendant has also been served with the suit summons and notices, as recorded in order dated 6th July, 2022. Mr. Manish Biala, ld. Counsel submits that, despite, the service, the Defendant is not appearing. However, it is submitted by ld. Counsel for the Plaintiff that the Defendant has now stopped use of the mark ‘GEETANJALI’. The Defendant is accordingly proceeded ex parte.
6. The Franchise Agreement stands admitted in this case, as the Defendant has made payments of franchise fee to the Plaintiff. Some clauses of the franchise agreement are set out below:
17.
USE OF INTELLECTUAL PROPERTY 17.[1] The Franchisor grants to the Franchisee during the term of this Agreement a license and permission to use the brand name only in relation to the services provided at the Salon. 17.[2] The use of the brand name by the Franchisee shall only be for the purposes of this Agreement, and will not create any right, title or interest in the brand name nfavour of the Franchisee. 17.[3] AIl Intellectual Property of the Franchisor is to be used only in the manner as specified in this Agreement.”
7. The above clauses are clear to the effect that the Defendant had to immediately stop use of the mark and not use any of the Intellectual Property of the Plaintiff. In view of the above clause, since the termination of the agreement has taken place, the Defendant would be liable to be permanently injuncted from using the Plaintiffs’ marks.
8. Considering that the Defendant was an ex-franchisee of the Plaintiffs, and the terms of the franchise agreement are clear to the effect, that the Defendant acknowledges the Plaintiff’s right in the mark ‘GEETANJALI’, no further oral evidence would be required in this matter, as held in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under:
9. The Defendant shall, accordingly, stand restrained in terms of paragraphs 48 (i) and (ii) of the prayer clause in the Plaint.
10. Insofar as the rendition of accounts and profits and delivery up are concerned, since there is no defence put up by the Defendant, considering the amounts which are stated to be due and the costs which the Plaintiffs had to incur in filing the present suit, the suit is decreed for a sum of Rs.7,50,000/- in favour of the Plaintiff against the Defendant, towards damages and costs. No other reliefs are pressed.
11. Decree sheet be drawn up in the above terms.
PRATHIBA M. SINGH JUDGE OCTOBER 31, 2022 dj/am