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HIGH COURT OF DELHI
CS(COMM) 356/2017 & I.A.No.5986/2017
IHHR HOSPITALITY PVT. LTD. ..... Plaintiff
Through Mr.Shantanu Sood, Advocate.
Through None
Date of Decision: 06th April, 2018
JUDGMENT
The ex parte ad interim injunction order dated 16th May, 2017 is confirmed till the disposal of the present suit.
1. Present suit has been filed for permanent injunction restraining infringement of trade mark, passing off, unfair competition, delivery up and recovery of damages.
2. Since the defendant has neither filed its written statement nor entered appearance, it is proceeded ex parte. 2018:DHC:2256
3. At this stage, learned counsel for the plaintiff gives up prayers 48(c) and (d) of the prayer clause to the suit. He prays that in view of the judgment of this Court in Satya Infrastructure Ltd. & Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 SCC OnLine Del 508, the present suit be decreed qua the relief of injunction and costs. The portion of the said judgment relied upon by learned counsel for the plaintiff is reproduced hereinbelow:- “I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-inchief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examinationin-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction.”
4. The relevant facts of the present case are that the plaintiff is the proprietor of the trade mark ANANDA which was adopted by plaintiff in 1998. The plaintiff’s mark was registered under Classes 03, 05, 21 and 30 under the old Trade and Merchandise Marks Act, 1958 and is currently registered under Class 42 under Trade Marks Act, 1999. The plaintiff is stated to have commenced commercial use of the trade mark for hotel services in 1999. It is further stated that plaintiff’s famous ANANDA Hotel and Spa Resort has been voted as the world’s no. 1 destination spa for many years by famous world’s premier travel magazines. It is also stated that plaintiff’s ANANDA Hotel is a world renowned destination that provides guests with the ultimate luxury in hospitality. It is averred in the plaint that the plaintiff markets and sells a variety of products under the trademark ANANDA and also owns and operates a premier Spa Institute in Hyderabad under the name ANANDA. It is stated that trademark ANANDA forms a key and essential feature of domain names used by the plaintiff, i.e., www.ANANDAspa.com, www.ANANDAspainstitute.com.
5. Learned counsel for the plaintiff states that, upon discovering the website www.anandagoa.com, it sent a cease and desist notice dated 19th December, 2014 to the defendant. He states that in July- August 2015, the plaintiff noted that the website www.anandagoa.com had been deactivated.
6. Learned counsel for the plaintiff also states that it came to plaintiff’s knowledge in February, 2017 that defendant is promoting and advertising its hotel/resort under the mark ANANDA as the finest beach resort in Goa of hotels under the domain www.bellagrouphotels.com and www.bellaanandagoa.com.
7. He further states that adoption and use of plaintiff’s trade mark ANANDA by the defendant constitutes infringement as well as passing off.
8. Order XIII-A of the Act, 2015 empowers this Court to pass a summary judgment, without recording evidence, if it appears that the defendant has no real prospect of defending the claim.
9. In the opinion of this Court, the defendant has no real prospect of defending the claim as it has neither entered appearance nor filed its written statement or denied the documents of the plaintiff. Further, the plaintiff is the prior user of the mark, domain name and is the owner of the registered trademark, i.e. ANANDA.
10. In view of the aforesaid, the suit is decreed in favour of the plaintiff and against the defendant in accordance with prayer clause 48 (a) and (b) of the plaint along with the actual costs. The costs shall amongst others include the lawyers’ fees as well as the amounts spent on purchasing the court fees. The plaintiff is given liberty to place on record the exact cost incurred by it in adjudication of the present suit, if not already filed. Registry is directed to prepare a decree sheet accordingly. Consequently, the present suit and application stand disposed of. MANMOHAN, J APRIL 06, 2018 KA