MS COPENHAGEN HOSPITALITY AND RETAILS & ORS. v. MS. A.R. IMPEX & ORS.

1. This hearing has been done through hybrid mode. I.A.7532/2022 (u/O XXXIX Rule 2(A) CPC) & 7596/2022 (modification of order dated 22.02.2022)

2. These are two applications moved by the Plaintiffs. The first application alleges breach of the injunction order dated 22nd February, 2022 by Defendant No.1. The second application seeks extension of the injunction order dated 22nd February, 2022 to a third sub-franchisee, which has now been taken over by Defendant No.1.

3. The history of these proceedings is that the Plaintiffs have claimed rights in the mark “LA PINO’Z PIZZA” and various other sub-brands. 2022:DHC:1883 Defendant No.1 was the ‘master franchisee’ of the Plaintiffs for the state of Gujarat. However, the relationship between the two broke. Defendant No.1 started its own pizza outlets under the name “LA MILANO PIZZERIA”. It is the allegation of the Plaintiffs that Defendant No.1 is trying to pass off its own goods, services and business as that of the Plaintiffs.

4. Initially, vide order dated 2nd June, 2021 an interim order was passed in the following terms: “25. In view of the foregoing, the court is of the view that the Plaintiff has made out a prima facie case. The balance of convenience also lies in favour of the Plaintiff, and irreparable harm is likely to be caused to it if such relief is not granted. Accordingly, the following interim relief is deemed fit to be granted till the next date of hearing: (a) Defendant Nos. 1 and 2, their partners, associates, franchisee, sub-franchisee, licensees, sub-licensees, agents, servants, affiliates or any one claiming under it, directly or indirectly, in any manner infringing the Plaintiff’s registered trade mark, are restrained from selling the pizzas under the impugned names SPRING BLING, LOVERS DELIGHT, BURN TO HECK, AMERICAN RETREAT, MILANO RETREAT and 7 CHEESY/CHEESE 7, which is infringing the Plaintiffs’ registered trade marks SPRING FLING, LOVERS BITE, BURN TO HELL and ENGLISH RETREAT, and misuse Plaintiff’s product names/marks LAS VEGAS RETREAT, CHICAGO RETREAT and CHEESY 7. (b) Defendants are restrained from using Plaintiff’s propriety products at any of their outlets.

(c) Defendant are restrained from accessing and controlling LA PINO’Z PIZZA’s official social media handles or any other websites. They are further directed to immediately, on the service of this order, hand-over the control of the official social media accounts to the Plaintiff.

(d) Defendants are restrained from using the

5. The said order was modified vide order dated 22nd February, 2022. Further undertakings were given by the Defendants in the following terms:

6. The Defendants have, without prejudice, undertaken to abide by the said undertaking in respect of the new franchisee as well.. Thereafter, an application under Order XXXIX Rule 2A CPC was filed by the Plaintiffs claiming that the undertakings were not adhered to by the Defendants. In the said application, vide order dated 27th April, 2022 the following direction was issued:

7. The present modification application has been moved by the Plaintiffs on the ground that a third sub-franchisee at Rajendra Nagar, New Delhi, which was earlier attached with the Plaintiffs, has now been taken over by the Defendants. The same has now become a franchisee of “LA MILANO PIZZERIA”. However, the said franchisee of the Defendants continues to use the same Facebook profile, Instagram page, email etc. on the internet, which were in some manner or the other linked with the Plaintiffs’ “LA PINO’Z PIZZA”.

8. The Court has perused some of the Facebook pages of the said franchisee. Though the main pages of the Facebook profile have been changed to “LA MILANO PIZZERIA”, since the said Facebook profile was earlier associated with the Plaintiffs’ brand “LA PINO’Z PIZZA”, certain historical/earlier comments, views, listings, etc. also appear with the name “LA PINO’Z PIZZA” on the said Facebook page. When the said fact is pointed out by the ld. Senior Counsel for the Plaintiff, Mr. Mehta, ld. Senior Counsel for the Defendant submits, without prejudice to his client’s rights, insofar as the Facebook, Instagram pages are concerned, any references to “LA PINO’Z PIZZA” has been instructed to be removed by the franchisee. Accordingly, let the said removal be affected within five working days.

9. It has further been pointed out to the Court that whenever messages are now sent on WhatsApp on the telephone number which was earlier being associated with the Defendants as the franchise outlet of the Plaintiffs, the following message appears in reply on the WhatsApp: “Thank you for contacting La Pino’z Pizza Rajinder Nagar! We are taking extra safety measures for arresting COVID-19. Keep ordering @https://uen.io/lapinoz”