FRANKFINN AVIATION SERVICES PRIVATE LIMITED v. TATA SIA AIRLINES LTD.

I. Reliance by the Plaintiff on the earlier interim injunction orders in other cases cannot aid the Plaintiff, as therein the use of the mark by the Defendants was in relation to education Institutions falling in class 41, in which Plaintiff currently holds registration, save and except CS(COMM) 287/2019 relating to the airline GO AIR. However, therein parties settled the matter and a consent decree was passed by the Court, which cannot be used against the Defendant herein.

Without disclosing true and correct facts to the Court, an ex parte order of injunction was obtained by the Plaintiff, which is severely impacting the reputation of the Defendant as well as its business and customer outreach. Defendant has spent significant monies on its marketing and promotion campaign with 2480 social media posts apart from use of ‘FLY HIGHER’ on web pages. Campaign was a huge success with tremendous social media reach and engagement. The injunction order restraining the Defendant from using ‘FLY HIGHER’ as trademark/logo/keyword/meta type/ hashtag etc. has resulted in undue restrictions and caused irreparable harm and injury. Removal of the posts would result in erasure of lakhs of social media posts and signages, including at Defendant’s airport offices etc. and this would not only be a herculean task but would also result in loss of revenue and reputation.

11. Responding to the contentions of the Defendant, Learned Senior Counsel appearing on behalf of the Plaintiff contended as follows:

Plaintiff has a valuable right under Section 28(1) to use the same exclusively and seek relief of infringement against Defendant who is in bad faith and unauthorizedly using the mark ‘FLY HIGHER’ and causing confusion amongst the public. The intent is to mislead innocent and unwary persons availing Plaintiff’s services and acts of the Defendant amount to passing off and unfair competition.

HIGHER’ as a trademark. A bare perusal of the documents filed by the Defendant which include screenshots/pictures of the hoardings, YouTube and online portals clearly evidence the use of the mark as a trademark and pertinently the mark ‘FLY HIGHER’ is prominently displayed in a larger font as compared to the accompanying mark. Defendant is not correct in its submission that services provided by the Plaintiff and Defendant are dissimilar. Defendant operates and provides services in the aviation sector which are, to state the least, allied and cognate to the services offered by Plaintiff, i.e., training in field of aviation, hospitality, travel management and customer service and this is fortified by the admission of the Defendant in para 37 of the written statement.

I. Moonshine Technology Private Limited v. Tictok

II. Ansul Industries v. Shiva Tobacco Company, 2007

III. Midas Hygiene Industries (P) Ltd. and Another v.

IV. Sabmiller India Ltd. v. Jagpin Breweries Ltd., 2014

V. Astra-IDL Limited v. TTK Pharma Limited, 1991

VI. Corn Products Refining Co. v. Shangrila Food

VII. M/s DRS Logistics (P) Ltd & Anr. v. Google India

12. This Court has heard the learned Senior Counsels for the parties and given careful consideration to their rival contentions.

13. From the expose of facts mentioned above, it is an admitted position obtaining between the parties that Plaintiff is a registered proprietor of the trademark ‘FLY HIGH’. As per the Plaintiff the trademark was coined and adopted in the year 2004 and has been continuously and extensively used for imparting training in the field of aviation, hospitality, travel, management and customer services. Plaintiff has an exclusive right by virtue of registration of the said trademark under Section 28(1) of the Act. Pithily put, the grievance voiced by Plaintiff is that Defendant is a subsequent adopter of the trademark ‘FLY HIGHER’ and its use in respect of similar/allied and cognate services, is a gross violation of Plaintiff’s statutory as well as common law rights. Prime defence of the Defendant per contra is that Defendant’s use of the phrase/expression ‘FLY HIGHER’ is not as a trademark, which is a fundamental requirement for any action of trademark infringement or passing off. Defendant is using ‘FLY HIGHER’ solely as a descriptive phrase/expression for its advertising and promotion campaign in respect of its airlines operating under a well-known trademark ‘ ’. The phrase is always used in conjunction with its trademark and no services are offered under the phrase/expression ‘FLY HIGHER’. The expression ‘FLY HIGHER’ does not act as a source identifier of Defendant’s services and it is fallacious to argue that it is a trademark of Defendant. Much was also argued to bring home the point that Plaintiff cannot claim exclusive right in the trademark ‘FLY HIGH’ as the same is prima facie invalid being a term of common parlance, descriptive in character and common to trade. It cannot be claimed by Plaintiff that the trademark is capable of being exclusively associated with the Plaintiff as the trademark ‘FLY HIGH’ has a dictionary meaning, which connotes ambition/pursuit of higher success/a level up and is merely laudatory in nature.

14. Indubitably, Plaintiff is a registered proprietor of the trademark ‘FLY HIGH’ and thus by virtue of provisions of Section 28(1) of the Act, it has a statutory right to use the mark exclusively as also seek protection against infringement by third parties. The first question that arises for consideration is whether the registration of the trademark FLY HIGH by the Plaintiff can prevent the Defendant from using FLY HIGHER in light of the defence set up by the Defendant that it is not using the allegedly similar mark as a trademark and assuming for the sake of arguments that the use is as a trademark, the respective services are not identical/similar and there is no likelihood of confusion, besides the fact that usage is in respect of services falling under those classes in which Plaintiff has no registration. Thus the claim of infringement cannot be sustained under Section 29 of the Act.

15. Before proceeding to examine the question whether Defendant is using FLY HIGHER as a trademark, I may illustratively refer to one of the many screenshots of the campaign filed on record by the Defendant to demonstrate the use of ‘FLY HIGHER’ in conjunction with its trademark, as follows:-

16. Looking at the screenshot, this Court finds that Defendant is using the phrase FLY HIGHER in conjunction with its well-known trademark and the logo. Under the Act, there is a clear distinction between a ‘mark’ and a ‘trademark’ and the intent of the Legislature is to keep the two distinct as they have different connotations. ‘Trade Mark’ is defined under Section 2(1)(zb) as follows:

17. ‘Mark’ is defined under Section 2(1)(m) as follows: “2. (1)....

(m) mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.”

18. Reading of the aforesaid definitions shows that in order to qualify as a trademark it must be capable of distinguishing the goods and services of one person from the others and it must be used or proposed to be used in relation to goods or services for indicating a connection, in the course of trade, between the goods or services and the person having the right to use the mark either as a proprietor or as a permitted user. Trademarks, therefore, are intangible assets of the proprietors, which serve as ‘source identifiers’, instantly connecting the goods/services with the proprietor thereof.

19. In Cadila Health Care Ltd. v. Gujarat Co-operative Milk Marketing Federation Ltd. & Ors., 2009 SCC OnLine Del 2786, the Division Bench of this Court while dealing with use of the term ‘SUGAR FREE’, upheld the findings of the learned Single Judge which were as follows:

20. In the aforementioned case, Court had prima facie held that the mark of the Plaintiff was descriptive and by adopting a purely descriptive and laudatory expression, Plaintiff must be prepared to tolerate some degree of confusion which is inevitable owing to widespread use of such trademark by fellow competitors. However, what is of relevance to the present case is the observation that even if the mark of the Plaintiff acquires a secondary meaning and is distinctive in relation to its products, it does not entitle such a person to preclude others from using the expression for purpose of describing the characteristic features of their products and more importantly where the Defendant uses the expression only in a descriptive sense and not as a trademark. In Bata India Limited v. Chawla Boot House and Another, 2019 SCC OnLine Del 8147, the Court while holding that the mark ‘POWER’ could be termed as a ‘suggestive’ mark for footwear, which would make it an inherently distinctive mark and therefore, its use in combination with other words or in an isolated manner in respect of footwear, clothing etc. violates the statutory and common law rights of the Plaintiff, permitted Defendant No. 2 therein to use the tagline ‘THE POWER OF REAL LEATHER’ with a rider that no undue prominence shall be given to the word ‘POWER’. In Red Bull AG v. Pepsico India Holdings Pvt. Ltd. & Anr., 2022 SCC OnLine Del 969, the Court held that the use of the impugned tag line ‘STIMULATES MIND.

ENERGIZES BODY’ by the Defendants was in a descriptive/laudatory manner and not as a trademark. Being an expression comprising of four English words that aims to describe the features and quality of its drink in comparison to its brand name ‘STING’ its use cannot be termed as infringement of Plaintiff’s registered trademark/tag line ‘VITALIZES BODY AND MIND’ under Section 29 of the Act. What emerges from the observations in the aforesaid judgments is that if the Defendant is able to demonstrate that its use of the allegedly infringing trademark is not as a trademark but merely descriptive of its goods, it can escape the rigours of Section 29 of the Act. In fact, this defence is available to the Defendant under Section 30(2)(a) of the Act which provides that a registered trademark is not infringed where the use in relation to goods or services indicates the kind, quality, quantity, intended purpose etc. or characteristics of goods or services.

21. Defendant has taken a categorical stand that its registered trademark is and its formatives. It is undisputed that the trademark has been declared as a well-known trademark by a judgment of this Court in CS(COMM) 156/2019, decided on 05.08.2019. In my prima facie view, the Defendant is right in stating that the phrase FLY HIGHER is only used in conjunction with its well-known mark and with a sole purpose of advertising and promoting its scheduled Airline operating under and is not used as a trademark.

FLY HIGHER does not serve as a source identifier so as to distinguish Defendant’s goods and services from its competitors, and cannot be termed as a ‘Trade Mark’, as defined under the Act. In order to demonstrate the inspiration behind the FLY HIGHER campaign, its aim and objective, Defendant has placed on record screenshots of social media posts as well as the advertisements on the internet and print media etc. As an illustration, I may refer to one such document as under, which would reflect the purpose behind the campaign as well as the contents of the advertisements put in the public domain:

22. A perusal of the various documents in this regard, prima facie evidences that the FLY HIGHER campaign was launched in the year 2018 as an extension of Defendant’s tagline ‘FLY THE NEW FEELING’. The campaign was aimed at inspiring people to invest in flying with Vistara airline, promising high levels of class, quality, lifestyle etc. and not to settle for the second best. Defendant has, in the written statement, explained that the phrase FLY HIGHER seeks to build on inspiration from the trademark which means ‘limitless expanse’ and is interpreted to mean that sky is the limit in terms of its dream to remain India’s favourite and most trusted Airline and Defendant never intended to use the same in a trademark sense. Defendant has also pointed out that in its other campaigns and hashtags, it uses various other descriptive and laudatory phrases such as ‘feel the flavours’, ‘feel exclusive’, ‘arrive fresh’, etc. and hashtags such as #VistaraLove and #AirlineIndiaTrusts.

23. Defendant has placed on record documents to show that the phrase FLY HIGH and its variants, such as FLY HIGHER/HIGH FLY etc. are commonly used in articles to describe success of players in the Airlines industry. Furthermore, it is brought out that various Airlines, such as Air India, Emirates, Spice Jet, Lufthansa etc. have been using and continue to use the phrase FLY HIGH or a variation thereof as part of their social media posts, advertising campaigns or even as a part of their Frequent Flyer Programmes and on account of this usage, common to trade, Defendant has never sought registration of the phrase FLY HIGHER.

24. On a perusal of the documents, this Court finds prima facie merit in the submission of the Defendant that the term FLY HIGH is demonstrably common to Aviation sector and this is fortified by the Master Data of over 20 registered companies, incorporating the phrase FLY HIGH/HIGH FLYER/HIGH FLYERS, which continue to be active and have not been struck off from the Register of Companies. Defendant has also placed on record copies of extracts of online records of the Trade Marks Registry showing registrations/pending applications for the mark FLY HIGH/HIGH FLYER. Another significant factor that needs to be noted is that the mark of the Plaintiff proceeded to registration under application no. 1535614 in class 41 with a condition that the Plaintiff shall have no exclusive right to use the word ‘HIGH’ which, as brought out by the Defendant, is a fact concealed by the Plaintiff in the plaint. From the plethora of documents placed on record, in my prima facie view, this Court cannot agree with the Plaintiff that the Defendant uses the phrase FLY HIGHER as a trademark and thus the edifice built on foundation of the argument that by using a deceptively similar trademark, Defendant is guilty of infringement, falls to the ground.

25. Defendant is also right in its submission that even assuming for the sake of argument that it uses FLY HIGHER as a trademark, no right of the Plaintiff in its mark FLY HIGH is infringed since Defendant does not use the mark in classes 16 and 41 in which Plaintiff claims to hold registrations and Defendant’s core services are in classes 12 and 39 relating to Airline industry. Plaintiff has not filed applications in classes 12 and 39 and its registration for the mark FLY HIGH in different classes cannot be the basis to restrain the Defendant in classes for which the Plaintiff has no registration, unless it is able to make out a case that the services are similar or allied and cognate.

26. Insofar as the services offered by the respective parties are concerned, this Court finds prima facie merit in the argument of the Defendant that Plaintiff and Defendant operate in an entirely different field and industry. Defendant is operating a full-service Airline under its well-known trademark, while the Plaintiff is engaged in running a training Institute under the FRANKFINN mark. The channels of trade and class of customers are separate inasmuch as Plaintiff’s target audience comprise young impressionable students seeking soft skills training for future career. Plaintiff does not guarantee any student a career in an Airline and only trains them. No doubt, there is an element of training that the Defendant imparts, however, the same is only limited to a technical training imparted to the cabin crew personnel which is approved and regulated by DGCA and BCAS, coupled with technical examinations to obtain a pass issued by BCAS. Therefore, Plaintiff cannot succeed even in arguing that the services offered by the Defendant are allied and cognate on all the parameters laid down by this Court in FDC Limited v. Docsuggest Healthcare Services Pvt. Ltd. & Anr., 2017 SCC OnLine Del 6381, i.e. use, user, nature of services, trade channels etc.

27. The underlying ethos of an infringement action, in my view, under Section 29 of the Act is: (a) proprietary rights of a registered owner; and (b) public interest. Therefore, a very important ingredient of an action of infringement is likelihood of confusion and/or association amongst the intending purchasers. Hence, the pivotal question that next arises is whether there is a likelihood of confusion as to the origin of the services offered by the Defendant or any association between the services of the respective parties. In order to test the likelihood of confusion one would need to holistically examine not only the degree of visual, aural or conceptual similarity between the marks but also the impression of an average consumer with imperfect recollection with respect to the degree of similarity between the goods or services purveyed under the rival marks [SABEL BV v. Puma AG, Rudolf Dassler Sport, [1998] R.P.C. 199 & Kerly’s Law of Trade Marks & Trade Names, 4th edition at page 247-248]. Looking at the nature of services, channels of trade and class of customers in the present case, at this stage, it is difficult to reach a prima facie conclusion that the services offered by the respective parties are not separate and distinct. Plaintiff’s target audience are people seeking soft skills training in the travel, tourism, hotel management and Aviation sector with the hope of possible employment opportunities while Defendant’s customers comprise travellers who choose to fly with Vistara Airlines. It is difficult to fathom that an informed decision to travel by Vistara Airlines would be taken by a person intending to travel, keeping in mind the alleged popularity of the FLY HIGH mark of the Plaintiff or the services pertaining to training in varied fields of travel, hospitality and hotel industry, including Aviation Sector. Plaintiff has not placed on record any material to establish that it has the necessary goodwill or reputation in the services offered by the Defendant. To this Court, prima facie, the argument of the Plaintiff seems too far-fetched for this Court to hold that any prudent person desirous of purchasing an Airline ticket, would be influenced by the stellar reputation of a training Institute, even if it was solely training people for recruitment in Aviation sector, instead of exercising an option from amongst the competing airlines, based on the competitive fares and services offered. Defendant’s customers, as rightly pointed out, comprise well-informed discerning people, who would not choose to travel in Vistara airlines, based on Plaintiff’s repute in the training Institute. Prima facie the element of likelihood of confusion or members of the public or trade associating the services offered by the Defendant as emanating from the Plaintiff, is lacking in the present case. Thus, even assuming that Defendant is using FLY HIGHER as a trademark or even as a mark, ingredients of Section 29(1) and (2) are not satisfied.

28. In support of the plea of delay and acquiescence, Defendant has placed on record material in the form of advertisements, magazines on the print media, cinemas, television as well as billboards and hoardings on digital screens and on prominent properties in various metropolitan cities including 2480 social media posts on Twitter, Facebook, Instagram, YouTube etc. to demonstrate that it launched its national advertising campaign FLY HIGHER on 14.12.2018, which was widely advertised. Plaintiff has denied that there is any delay and claims to have acquired knowledge only in January, 2022 through the advertisement campaign on various online platforms. In wake of documents placed on record by both sides and considering that there are remnants of the campaign even today on various platforms, this is really a mixed question of facts and law and cannot be decided without evidence. Suffice would it be to state that at this stage Plaintiff cannot be ousted on ground of delay and acquiescence.

29. Defendant has laboured hard to show that the words ‘FLY HIGH’ are common to trade and has placed on record several documents in support thereof, in an endeavour to demonstrate that the trademark ‘FLY HIGH’ is widely used by third party websites, in context of its dictionary meaning, particularly with respect to aviation sector. The documents filed by the Defendant can be categorised into three distinct categories. First is the category of documents which show use of the trademark ‘FLY HIGH’ with respect to aviation academies by third parties offering identical services as those of the Plaintiff, as follows:i. ‘FLYHIGH AVIATION ACADEMY’ (Device Mark), registered on 21.03.2007, with user details 01.01.2002; ii. ‘LET’S HAVE WINGS, LET’S FLY HIGH’ (Word), registered on 06.12.2013, with user details 01.01.2012; iii. ‘aerokids Empowering to fly high’ (Device Mark), registered on 09.06.2012, with user details 12.01.2012, albeit renewal request is pending; iv. ‘FLYHIGH HOTEL MANAGEMENT ACADEMY’ (Device Mark), registered on 06.01.2017, with user details ‘proposed to be used’; v. ‘FLY HIGH INSTITUTE OF AVIATION & HOSPITALITY’, accepted and advertised.

30. Albeit, Defendant has taken a clear position that it is not using the expression/phrase ‘FLY HIGHER’ as a trademark, however, in order to show common usage of the said expression, Defendant has placed on record documents which are online articles showing use of the mark ‘FLY HIGH’ by several Airlines, in the context of their common as well as dictionary meaning. A chart enumerating the same is as follows:- Name Date Air India Brand Journey: Of Pride, Prudence, Panache 09.10.2021 Airline Stocks Fly High in Monday's Trading: Here's Why 08.12.2021 Airline Stocks Fly High in Thursday's Trading: Here's Why 14.01.2022 Airlines fly high as European markets end good week on a high note 15.10.2021 Airlines fly high as India-UAE flight bookings soar by 75% 04.10.2021 Domestic airlines fly high in September as demand soars but still far away from pre-Covid era 10.09.2020 For civilian aircraft, 29.07.2021 'Viceroy's Territory' will stay Hi-tech facilities at upcoming terminal, taxi track to make Surat airport fly high 29.11.2021 Indigo shares fly high on vaccine optimism, ignoring risks from new wave 14.04.2021 In-Flight Catering Services Market is Set To Fly High in Years to Come LSG Group, Gategroup Holding, Dnata 24.01.2022 Now that Jet Airways' revival plan has been cleared, will it have a smooth ride? 23.06.2021 Star Air announces direct flights from Jamnagar to Bengaluru and Hyderabad 25.08.2021 Airlines ‘fly high’ after passenger traffic surge 17.09.2021 US airlines fly high while virus drag keeps Japan carriers low 04.08.2021 What the Tatas must do to make Air India fly high again 10.10.2021 Abu Dhabi’s Etihad flying high as revenues rise 19 percent 07.04.2013 Air India could fly high with Tatas 14.08.2020 SpiceJet, IndiGo fly high riding Jet closure. Will this dream-run sustain? 23.08.2019 Chelsea fly high with Etihad 11.05.2008 Flying high: Jet, Etihad reengineer tarmac 28.07.2014 Indian airlines fly high as August passenger traffic surges IndiGo, SpiceJet Shares Fly High As August Passenger Traffic Surges KLM Airlines enters digital territory on the back of TCS' high-flying tech 10.09.2021 What the Tatas must do to make Air India fly high again 10.10.2021 Will Tata Sons, Singapore Airlines fly high in Indian skies 25.09.2013

31. The third set of documents are print-outs showing use of ‘FLY HIGH’ by various airlines, i.e. as common to aviation sector. A chart enumerating the same is as follows:- Airline Date Extracted reference Air India 12.01.2022 Air Asia 26.01.2022 “Here’s to exercising our rights to fly high and fly free, bringing people, cultures, and communities closer to each other. #RepublicDay!" Singapore Airlines N.A. “FLY HIGH as an airline professional” Air India 09.05.2019 “Dream BIG! Fly HIGH! #AirIndia #FlyTheChange #FlyAI”

32. From a perusal of the aforementioned documents, this Court finds as a matter of fact that ‘FLY HIGH’ is widely used, both in airline sector as well as with respect to coaching Institutes pertaining to aviation sector including travel and tourism and Defendant is neither the only one nor the first user of the phrase FLY HIGHER and this only supports the stand of the Defendant Ethiopian Airlines 13.02.2021 “Let us fly high together with a pleasant on-board experience. #FlyEthiopian” Oman Air 08.12.2014 “Flying high in our Embraer! How high exactly can we fly? Answer: 41,000 ft” Air India 22.02.2019 “Dream BIG! Fly HIGH! #AirIndia #FlyTheCbange #FlyAI” Oman Air 24.07.2018 Facebook profile “Flyhigh MNL” Indigo 07.09.2021 “Free to fly higher” Singapore Airlines N.A. “HighFlyer business travel programme” Oman Air 20.11.2020 “Always dream big, fly high and reach the top” – wishing a joyful #WorldChildrenDay to every child in the world! ” Oman Air 17.10.2019 “Spread Wings, Fly High. Happy #OmaniWomensDay!” Spicejet Airlines 14.01.2022 “Flying high with festive spirit” Thai Airways 11.05.2018 Emirates Airline 13.01.2022 “Flying high above it all. Can it get better than this?” Lufthansa 21.01.2022 “May the tricolour fly high” Philippine Airlines 07.02.2021 “Buy Low, Fly High with Philippine Airlines!...” that its intended user is descriptive of its services and for purpose of promotion and advertisement.

33. It is a settled law that in order establish a claim of passing off, Plaintiff must show that it has garnered goodwill and reputation, which is sought to be encashed by the Defendant by misrepresentation that its goods emanate from or have some connection with the Plaintiff and the confusion/misrepresentation results in injury to the reputation of the Plaintiff. In the present case, Defendant has brought out the stellar reputation and goodwill that it enjoys and the expanse of operations of its full-service Airline under the well-known trademark. The growing fleet of its aircrafts, number of flights undertaken, both domestic and international, number of internet users visiting its website, the awards received as Best Airline consistently from 2016 and substantial amounts invested on promotion campaigns, revenue generated etc., are evidence of the reputation garnered by the Defendant. In fact, in the context of promotion campaigns, Defendant has stated in the written statement that from the year 2014-15, it has been spending nearly Rs. 15-20 crores on promotions of its services under the trademark and the expenses have increased to near/over Rs. 30 crores from the Financial Year 2015-16. Defendant’s trademark has been declared a wellknown mark as defined under Section 2(1)(zg) of the Act by this Court in CS(COMM) 156/2019. Over the years, the campaign FLY HIGHER has been deployed across multiple platforms including advertisements during popular prime time television shows. It is also averred in the written statement that the campaign launched in 2018 was a roaring success and from the ‘VISTARA UPGRADE’, Defendant has earned a revenue of Rs. 14,67,19,952/- since August, 2020 till mid-January, 2022. There is only a general and evasive denial to these averments by the Plaintiff, in the Replication.

34. It cannot be underscored that in a claim of passing off, Plaintiff must show the reputation/goodwill it has acquired, however, it is equally important to discharge the onus, even though prima facie at this stage, that Defendant is misrepresenting amongst the public by encashing on Plaintiff’s reputation. Looking at the reputation of the Defendant, as aforementioned, Defendant does not need to encash on Plaintiff’s reputation to operate its airlines, as rightly contended by learned Senior Counsel for the Defendant. The manner in which the phrase FLY HIGHER is being used by the Defendant does not appear to be with an intent to deceive, misrepresent or confuse members of the public. Prominent use of the well-known trademark in conjunction with the phrase FLY HIGHER further defies any intent of the Defendant to misrepresent, contrary to the stand of the Plaintiff. Hence, Plaintiff has failed to establish a prima facie case of passing off against the Defendant.

35. Learned Senior Counsel for the Plaintiff relied on orders of interim injunctions secured in CS(COMM) 496/2021, CS(COMM) 305/2021, CS(COMM) 866/2018 and CS(COMM) 287/2019. Insofar as, the first three suits are concerned, the subject matter relates to educational institutions which fall within the purview of class 41, in which the Plaintiff holds registration. Additionally, in CS(COMM) 88/2016, the suit is against an ex-employee of the Plaintiff where a claim for misappropriation of confidential information has also been made. Insofar as CS(COMM) 287/2019 is concerned, the same was filed against Go Air, however, Defendant has stated in the written statement that a consent decree was passed in the said suit and as rightly contended, the same cannot bind the Defendant in the present suit. Insofar as reliance on the observation of the judgment dated 16.02.2022 passed in CS(COMM) 305/2021, is concerned, the same is inapplicable to the present case, in view of the finding given by this Court in the earlier part of the judgment that Defendant is not using the expression ‘FLY HIGHER’ as a trademark. Additionally, in the said case the Defendant was using the mark in respect of services similar to that of the Plaintiff and as evident from para 22 of the judgement it is in this backdrop that the Court held that any person using ‘FLY HIGH’ in respect of identical or similar services would be infringing Plaintiff’s mark. In the present case, as noted above the services offered by the Defendant are not similar to those of the Plaintiff.

36. Learned Senior Counsel for the Plaintiff has relied on the judgment in Moonshine Technology Private Limited (supra). In the said case, the Court came to a finding that the word ‘Baazi’ was being used by the Defendants as a trademark and not as a description of their services with an intent to gain unfair advantage of the repute of the Plaintiff’s trademark. In the present case, as noted above, Defendant is not using the phrase FLY HIGHER as a trademark and has no intent to take unfair advantage of Plaintiff’s reputation, having an impeccable and immense reputation of its own.

37. The facts of the case in the judgment relied upon by the Plaintiff in the case of Sabmiller India Ltd (supra), are wholly different. The Court therein came to a finding that the rival trademarks were visually alike giving rise to likelihood of confusion as the words ‘FIVE THOUSAND’ and ‘5001’ are phonetically similar. The question before the Court was primarily what constitutes ‘use’ and it was held that only because a registered trademark is not used exactly in the manner in which it is registered, it cannot be said that the registered proprietor has abandoned the trademark. In the context of an argument raised by the Defendant that there were multiple marks seemingly similar to that of the Plaintiff, the Court held that the mere presence of the mark on the Register does not prove its user and having regard to the enormity of Plaintiff’s reputation in the suit mark, some solitary instances of such nature are of no consequence. Quite contrary, in the present case, the Defendant is not using the phrase FLY HIGHER as a trademark and Plaintiff has been unable to controvert the common usage of the said phrase and its variations, not only by Airlines but also training institutes.

38. Insofar as the judgment in Midas Hygiene Industries (P) Ltd. and Another (supra), is concerned, this Court has not given any finding against the Plaintiff and therefore it is unnecessary to delve on the principles laid down therein. As far as the remaining judgments are concerned, suffice would it be to state that each of them deals with comparison of the rival trademarks in terms of visual, structural and phonetic similarity. It bears repetition to state that in the wake of the Defendant not using FLY HIGHER as a trademark, none of the judgments would be applicable to the present case.

39. For all the aforesaid reasons, the ex parte ad interim injunction order granted by this Court vide order dated 21.01.2022 is hereby vacated.

40. Accordingly, I.A. 1188/2022 filed under Order 39 Rules 1 and 2 CPC by the Plaintiff is dismissed and I.A. 1670/2022 filed under Order 39 Rule 4 CPC by the Defendant is allowed.

41. It is made clear that the observations in the present judgment are only prima facie and shall not impact the final adjudication of the suit on merits. CS(COMM) 54/2022 & I.A. 1795/2022, 3651-52/2022

42. List for further proceedings on 13.01.2023, before the learned Joint JYOTI SINGH, J OCTOBER 28th, 2022/shivam/rk