Full Text
HIGH COURT OF DELHI
Date of Decision: 13th July, 2022
FRANKFINN AVIATION SERVICES PRIVATE LIMITED. .... Plaintiff
Through: Mr. Kapil Midha and Ms. Versha Singh, Advocates. (M:9818382806)
Through: None.
JUDGMENT
1. Vide order dated 6th October, 2021, the interim injunction already granted was made absolute.
2. Status quo in respect of the domain name being ‘www.frankfinncreations.com’ shall be maintained during the pendency of the suit.
3. Accordingly, I.A.7497/2021 is disposed of. CS (COMM) 292/2021 & I.A.8404/2021 (u/O XXXIX Rule 2A CPC)
4. The present suit has been filed by the Plaintiff - Frankfinn Aviation Services Private Limited seeking permanent and mandatory injunction restraining the infringement of the trademark ‘FRANKFINN’, passing off, acts of unfair competition, dilution, rendition of accounts, damages, delivery up and other reliefs, against the Defendant No.1 - M/s. Frankfinn Creationswhich is a sole proprietary concern run by Defendant No.2 - Mr. Manoj 2022:DHC:2603 Kumar.
5. The Plaintiff is engaged in the field of imparting training in the field of aviation, hospitality, travel management and customer services. It is the case of the Plaintiff that it is the original owner, adopter and user of the mark ‘FRANKFINN’. As per the Plaint, the mark ‘FRANKFINN’ was coined and adopted in India in the year 1980 and is also a registered trademark of the Plaintiff in various Classes, including Class 35, 37, 16 & 41, both in logo form and word mark form. The persons, who have obtained training from the Plaintiff, are stated to be obtaining the highest placements in various entities. Thus, the Plaintiff has received commendations for having one of the highest track records in placements.
6. The flagship website of the Plaintiff is ‘www.frankfinn.com’ where the details of all the services offered by the Plaintiff are accessible. The Plaintiff has also registered various other domain names which have been listed in the Plaint. The Plaintiff claims that the mark ‘FRANKFINN’ has become a well-known trademark as it enjoys the reputation and goodwill in India as also internationally. Reliance is placed upon various articles which have been published by internationally renowned publications such as New York Times, Financial Times UK, BBC, Channel 4, etc. The Plaintiff has various well-known celebrities, who have endorsed and have promoted its brand including Bollywood actress, Ms. Alia Bhatt. The revenues of the Plaintiff have been placed on record which shows that the Plaintiff’s turnover for the financial year 2019-20 is to the tune of about Rs.200 crores. The advertisement expenditure of the Plaintiff has been placed on record and a perusal of the same shows that the expenditure in the year 2019 was to the tune of Rs.26 crores.
7. The Plaintiff is aggrieved by the Defendants’ use of the mark and name ‘FRANKFINN CREATIONS’ for its event management business. The Defendant Nos.[1] & 2 are based in Patna. According to the Plaintiff, they are using the mark ‘FRANKFINN’, both as part of their trading style, trademark, as also, their domain name ‘www.frankfinncreations.com’. The case of the Plaintiff is that the Defendants’ use of the mark is illegal and fraudulent, and such use constitutes infringement of the registered trademark, passing off, unfair competition, and dilution. Accordingly, the Plaintiff has filed the present suit praying for a decree of permanent and mandatory injunction and for damages of Rs.[2] crores.
8. Vide order dated 14th June, 2021, an ex parte ad-interim injunction was granted restraining the Defendants from using the mark ‘FRANKFINN’. The operative portion of the said order reads as under:
9. On the said date, a Local Commissioner was also appointed for visiting the premises of the Defendants in order to make an inventory and take custody of the infringing material, as also, the Defendant’s books of accounts. The said Local Commission was executed on 22nd June, 2021 and the report of the Local Commissioner was brought on record. A perusal of the said report shows brazen non-compliance by the Defendants, as also, threats that have been levelled by the Defendants against the Plaintiff. The relevant extracts of the report of the Local Commissioner are set out below:
10. After looking into the premises in detail and not finding any infringing product, the Commissioner and the Plaintiff’s representative along with the Policemen left the premises.”
13. Since 17th December, 2021, the Defendants have stopped appearing in this matter. Even on the last date of hearing i.e., 22nd March, 2022, none appeared for the Defendants and this Court had directed that an intimation be issued by the Registry to the ld. Counsel for the Defendants. Today, the Registry has reported that an email has been sent to the ld. Counsel for the Defendant, however, none has appeared today. No written statement has been filed by the Defendants in the present case, despite the Defendants having been served almost one year ago.
14. Following the rationale of the ld. Single Judge of this Court in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014], no ex parte evidence would be required in this matter. The same has been reiterated by the Court in S. Oliver Bernd Freier GMBH & CO. KG v. Jaikara Apparels and Ors. [210 (2014) DLT 381], as also, in United Coffee House v. Raghav Kalra and Ors. [2013 (55) PTC 414 (Del)]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under:
15. In the present case, it is clear that the Defendants have no defence, especially considering the Plaintiff’s goodwill and rights in the mark ‘FRANKFINN’. Since the Defendants have also not filed their written statement, the pleadings in the Plaint remain unrebutted. The Defendant Nos.[1] & 2 have clearly violated the rights of the Plaintiff in the mark ‘FRANKFINN’. This Court is of the opinion that a decree is liable to be passed in favour of the Plaintiff, in terms of the reliefs as sought in paragraphs 66(a) and 66(b) of the Plaint. Since the infringing material was not found by the Local Commissioner, the relief as sought in paragraph 66(c) of the Plaint is infructuous.
16. The domain name ‘www.frankfinncreations.com’ registered by the Defendants shall be transferred by the concerned Registrar i.e., PublicDomainRegistry.com, to the Plaintiff, within two weeks, upon the service of the present order, by email at ‘corpdomains@endurance.com’.
17. The said mark is a well-known and highly distinctive mark. The adoption and use of the mark ‘FRANKFINN’ by the Defendants was clearly dishonest and mala fide. No explanation has been given by the Defendants for adopting an identical mark. Under these circumstances, as also, in view of the repeated costs incurred by the Plaintiff for execution of the Local Commissions and the court fee which has been paid by the Plaintiff, the Plaintiff is granted damages to the tune of Rs.15 lakhs, in terms of the relief as sought in paragraph 66(f) of the Plaint.
18. Decree sheet be drawn accordingly.
19. Insofar as the contempt application being I.A.8404/2021 under Order XXXIX Rule 2A CPC is concerned, the Defendants clearly misbehaved with the Local Commissioner. The Defendant No.2 abused the Local Commissioner, and did not cooperate in the execution of the Local Commission. The Local Commissioner’s report is quite revealing and establishes the contumacious conduct of behalf of the Defendant No.2. Further, the Defendants have chosen not to appear in the matter, despite being duly served. The conduct of the Defendant no.2 prima facie constitutes contempt on the face of the Court.
20. Under these circumstances, let bailable warrants be issued against Mr. Manoj Kumar, for the sum of Rs.25,000/-, to be served through SSP, Patna. Let a status report be placed on record by the SSP, Patna in this regard, by the next date of hearing. Defendant no.2 shall be present before this Court on the next date of hearing.
21. List the contempt application I.A.8404/2021 on 13th October, 2022.
PRATHIBA M. SINGH, JUDGE JULY 13, 2022/dk/ad