SHRINATH TRAVEL AGENCY & ANR. vs INFINITY INFOWAY PVT LTD & ORS.
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 738/2023
SHRINATH TRAVEL AGENCY & ANR. ….. Plaintiffs
Through: Ms. Karuna Nundy, Mr. Nischal Anand, Ms. Tanvi Jain, Mr. Aman Preet Singh and Ms. Rishika Rishabh, Advs.
versus
INFINITY INFOWAY PVT LTD & ORS. ….. Defendants
Through:
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 06.11.2023
IA 20396/2023 (under Order XXXIX Rules 1 and 2 CPC)
1. Summons, in this suit, as also notice in the present application, were issued on 13 October 2023. Notice in the present application was made returnable on 1 November 2023.
2. Ms. Karuna Nundy learned Counsel for the plaintiffs, points out that notice stands served on all the defendants and speed post tracking reports have also been placed on record. The Registry also reports that notice separately stands served by the registry on Defendant 3.
3. Despite this matter having been called out twice today, there is no appearance on behalf of any of the defendants. Nor has any of the defendants condescended to place on record any response to the present application.
4. I have, therefore, heard Ms. Karuna Nundy for the plaintiff and proceed to dispose of the present application.
5. The plaintiffs seek, by means of the present application, interlocutory injunction, pending disposal of the suit, restraining the Defendant 3 from using the mark , Defendant 4 from using the marks Shrinath Tourist Agency, Shrinath Nandu Travels, and and Defendant 5 from using the mark .
6. The plaintiffs are the proprietor of the following trade marks, registered under the Trade Marks Act, 1999.
Trademark
Registration/Trademark No. and date
User details
Class
Description of goods/services
Status
569684
18.03.1992
01.01.1978
16
Printed matters, visiting cards, boards, stationery and other printed literature.
Registered
1312997
05.10.2004
01.12.1978
39
Travel arrangements included in Class 39
Registered
2373270
01.08.2012
01.04.2006
39
Travel and tour operation, transports and travel arrangement
Registered
4193168
31.05.2019
01.04.2006
39
Travel and tour operation, transports and travel arrangement
Registered
SHRINATH
4706612
17.10.2020
01.04.2006
39
Travel and tour operation, transports and travel arrangement
Registered
7. The plaintiffs are engaged in the business of providing tour and travel services. The sales turnover, from the said services, has been provided from the years 2016-2017 till 2022-2023. For the year 2021-2022 to itself, the plaintiffs claimed to have earned ? 51,81,18,002/- from providing tour and travel services under the aforenoted marks. Plaintiff 2 has also been awarded various awards, about saving the excellence of the services that it provides. The plaint also points out that ex parte ad interim injunction had been granted to the plaintiffs, protecting its marks from infringement, by this Court, in CS (Comm) 340/20221 and CS (Comm) 45/20232 . The SHRINATH word mark was adopted by the plaintiffs in 1978 and has, since then, be used to continuously on a pan-India basis.
8. The plaintiffs are aggrieved by use, by the defendants, of logos which, according to the plaintiffs, are deceptively similar to the plaintiffs registered trademarks as well as, at least in the case of two of the defendants, i.e., Defendants 3 and 4, also deceptively similar to the plaintiffs registered word mark SHRINATH. The logos of the defendants are being used for identical services which, according to Ms. Karuna Nundy, learned Counsel for the plaintiff, is bound to result in confusion in the market.
9. Apropos the logo of Defendant 5, Ms. Nundy submits that, though Defendant 5 does not use the word SRINATH as part of its logo, the motif of a bus, with the underling below the mark and the words Travel & Transport Agency below the line, as well as the use of a colour combination of red and blue which is similar to the colour combination used by the plaintiffs, is likely to confuse customer at least into believing an association between the defendants and the plaintiffs within the meaning of Section 29(2)(b)3 of the Trade Marks Act 1999. She submits that the persons who use the buses of her clients, and of the defendants, generally belong to the semi-literate or illeterate class, who may not be able to notice the difference between the words SHRINATH and HUMSAFAR and would be taken in by the overall similar appearance by the two marks.
10. This application also seeks an interlocutory injunction, restraining the defendants from using the domain names www.ajayshreenathtravellers.com, www.shrinathnandutravels.com and www.humsafar.biz, pending disposal of the suit.
11. Ms. Nundy places reliance on the decision dated 24 January 2023 of a Coordinate Bench of this Court in CS(Comm) 45/2023 (Shrinath Travel Agency v. Maventech Labs Pvt. Ltd.).
12. The impugned marks in questions in that case were , and . Additionally, the defendants in those cases were also using the infringing domain names www.shreenathtourandtravels.com, www.shrinathtravels.net and www.shreenathtravels.com.
13. The coordinate Bench, even at the stage of issuing notice, granted ex-parte ad interim injunction against the defendants from using the marks SHREENATH, SHREENATH TOUR AND TRAVELS, SHREE NATH NAKODA TOUR AND TRAVELS, SHRINATH, SHRINATH TRAVELS, SHRINATH TOURS AND TRAVELS, SHREENATH TRAVEL, , and as well as the domain names www.shreenathtourandtravels.com, www.shrinathtravels.net and www.shreenathtravels.com.
14. Having perused the said decision, heard Ms. Nundy and gone through the material on record, I am prima facie convinced that the marks , and used by Defendants 3 and 4 infringe the plaintiffs registered trade marks SHRINATH, , , and .
15. The predominant feature of the impugned marks of Defendant 3 and 4 is the word SHREENATH or SHRINATH, which Defendant 3 writes as SHREENATH and Defendant 4 writes as SHRINATH, the slight difference in spelling really making no difference to the aspect of infringement, as plaintiffs holds a registration for the word mark SHRINATH per se. Besides, infringement, it is trite, has to be examined from the point of view of a consumer of average intelligence and imperfect recollection, and such a consumer is certainly unlikely to distinguish between the marks of the plaintiffs and Defendants 3 and 4, which are otherwise structurally similar, merely because of the slight difference in spelling between SHRINATH and SHREENATH.
16. One may borrow a leaf, in this regard, from the decision of the Supreme Court in K.R. Chinna Krishna Chettiar v. Shri Ambal & Co.4. The Supreme Court, in that case, was concerned with two device marks, both of which were used for snuff. The word, in one case, was Shri Ambal and in the other, Sri Andal. The Supreme Court records, in its judgment, the fact that the two device marks were visually completely different. Nonetheless, as the words which formed the predominant part of the two device marks were phonetically similar, the Supreme Court went ahead to injunct the use of the impugned device mark.
17. Applying that principle to the facts of the present case, as the word SHREENATH used by Defendant 3 is phonetically similar to SHRINATH and the word SHRINATH as used by Defendant 4 is identical to mark used by the plaintiffs, the likelihood of confusion in the market is apparent. Insofar as the device marks of the defendants are concerned, as the word component of the said marks (SHREENATH/SHRINATH) is identical/deceptively similar to the word SHRINATH in respect of which the plaintiffs possess a word mark registration, the aspect of likelihood of confusion stands exacerbated.
18. A prima facie case for injuncting the Defendants 3 and 4 from using the impugned , and therefore exists. Inasmuch as continued use of the impugned marks is likely to further infringe and possibly dilute the plaintiffs brand value, the considerations of balance of convenience and irreparable loss would also be in favour of grant of injunction as sought by the plaintiffs. Moreover, the Supreme Court has, in Midas Hygiene Industries (P) Ltd v. Sudhir Bhatia5, held thus:
5. The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.
19. However, so far as the logo of Defendant 5 is concerned, I am not convinced, prima facie, that the mark infringes the plaintiffs mark or even makes out a case of passing off.
20. Applying, to the mark, the same logic which I have applied in respect of the impugned marks of Defendants 3 and 4, the predominant feature of the mark of Defendant 5 is the word HUMSAFAR. There is no similarity whatsoever between HUMSAFAR and SHRINATH. The mere fact that both the parts incorporate the figure of a bus and a line drawn below the name, with Travel and Transport Agency printed below the line in the case of Defendant 5 and Travel Agency printed below the line in the case of the plaintiffs, cannot in my view make out a case of deceptive similarity, given the stark difference between SHRINATH and HUMSAFAR. The motif of a bus, and the words Travel and Transport Agency are not, in any manner, unique to Defendant 5. What, therefore, stands out, in the impugned mark of Defendant 5, is the word Humsafar. No word, which is structurally or phonetically similar to Humsafar is to be found in any of the registered trademarks of the plaintiffs. On an overall impression of the two marks, therefore, as would be gathered by a consumer of average intelligence and imperfect recollection, it cannot be said that the impugned mark infringes any of the registered trademarks of the plaintiffs.
21. It would be hazardous for this Court, at a prima facie stage, to proceed on the premise that the consumer or the persons who use the transport would be so illiterate that they would not know the difference between the HUMSAFAR and SHRINATH. Besides, no factual foundation for the submission has been adduced by Ms. Nundy. In the circumstances, the correctness of this contention would, at best, be a matter which would have to be relegated to trial.
22. I cannot, therefore, concur with Ms. Nundy in her request for an injunction against the use, by Defendant 5, of the device mark .
23. Resultantly, the present application stands disposed of in the following terms:
(i) There shall be an injunction against the defendants as well as all others acting on their behalf from using the words SHRINATH or SHREENATH, or the marks , and in any manner whatsoever or any other mark which may be similar to the plaintiffs registered trade marks SHRINATH, , , and .
(ii) Defendants 3 and 4 are also directed to remove, from all physical and virtual sites, including social media platforms, the impugned marks , and , within a period of one week from the date of communication of this order.
(iii) Defendants 3 and 4 are also directed to disclose, on affiadvit, duly certified by a Chartered Accountant (CA), the earnings made by them by use of the impugned , and marks, since the time the said marks have been in use.
(iv) The prayer for injunction against the use of the mark by Defendant 5 is, however rejected.
(v) The defendants are also directed to cease and desist from using the domain names www.ajayshreenathtravellers.com and www.shrinathnandutravels.com.
(vi) Defendant 6 is directed to provide on affidavit, the details of the domain name registrant www.ajayshreenathtravellers.com and to ensure that the said domain name remains blocked pending disposal of the present suit.
(vii) Defendant 7 is directed to provide on affidavit, the details of the domain name registrant www.shrinathnandutravels.com. and to block the said domain name pending disposal of the present suit.
24. IA 20396/2023 stands disposed of accordingly.
25. The views expressed in this order are merely prima facie and shall not influence the decision of the court at the time of final hearing of the suit.
C. HARI SHANKAR, J.
NOVEMBER 6, 2023
dsn
Click here to check corrigendum, if any
1 Shrinath Travel Agency v. Mr. Harsh Kumar
2 Shrinath Travel Agency v. Maventech Labs
3 (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of
*****
(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or
*****
is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.
4 MANU/SC/0303/1969
5 (2004) 3 SCC 90
—————
————————————————————
—————
————————————————————
CS(COMM) 738/2023 Page 1 of 13