Delhi High Court - Orders
Belmond Interfin Ltd vs Hotel Belmond Alias Aura Belmond on 23 November, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 693/2019
BELMOND INTERFIN LTD. ..... Plaintiff
Through: Mr.Prithvi Singh & Ms.Archita
Nigam, Advs.
versus
HOTEL BELMOND ALIAS AURA BELMOND ..... Defendant
Through: Mr.Nishant Rewalia, Adv. for
property owners Mr.Rohan Sehrawat,
Ms.Sonika Sehrawat and Ms.Pushpa
Sehrawat.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 23.11.2022 I.A.2577/2020
1. The above suit was filed by the plaintiff impleading Hotel Belmond alias Aura Belmond and complaining of the adoption of the mark 'BELMOND' by the defendant for providing hospitality services.
2. This Court, by an ad-interim ex-parte order dated 17.12.2019, restrained the defendant above named in terms of the prayer made in paragraph 19 of the application, being I.A. No.17870/2019. The said prayers are reproduced herein below:
"a) Restrain the Defendant, its employees, servants, agents and all others in active concert or participation with them from selling/ advertising, directly or indirectly providing services under the mark BELMOND or any other mark which amounts to an infringement of the trademark BELMOND;
b) Restrain the Defendant, its employees, servants, agents and all others in active concert or participation with them from selling/ advertising, Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:25.11.2022 18:01:07 directly or indirectly providing services under the mark BELMOND or any other deceptively similar mark, or use the mark BELMOND or a deceptively similar variant as a trademark or business name, which amounts to passing off the Defendant's services as that of the Plaintiff;
c) An order directing the directing the Defendant to take down all listings from travel booking websites including but not limited to www.booking.com, www.tripadvisor.com, www.goibiobo.com, www.makemytrip.com, www.yatra.com, www.expedia.com andwww.agoda.com and uk.hotels.com bearing the mark BELMOND during the pendency of the present suit;
d) An order directing the Defendant to disable the email addresses containing the trademark BELMOND during the pendency of the present suit;
e) That the above orders may be passed ex parte".
3. The plaintiff thereafter filed the present application, impleading the contemnors herein, and alleging that in spite of the order of injunction restraining the defendant from using a mark which is deceptively similar to the plaintiff's mark 'BELMOND', the defendant has merely changed the mark to 'HOTEL BELMONK', which is clearly deceptively similar to the plaintiff's mark and continues to run the hospitality services from the same premises. It was further alleged that the defendant, through Mr.Narender Kumar Sehrawat, has also applied for the registration of the mark "BELMONK/ " under Class 43 vide application no.
4399265 with the Trade Mark Registry on 06.01.2020, claiming user of the mark since 01.05.2018.
Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:25.11.2022 18:01:074. On 25.02.2020, when this application was taken up for consideration, the learned counsel for Mr.Rohan Sehrawat, Ms.Sonika Sehrawat and Ms.Pushpa Sehrawat, who claim themselves to be the owners of the property where the said hotel was running, entered appearance and stated as under:
" Learned counsel appearing on behalf of Rohan Sehrawat, Sonika Sehrawat and Pushpa Sehrawat who are the owners of property bearing No.407, Block A, Street No. 10, Mahipalpur Extension, near IPH Hospital, NewDelhi states that the summons and notice having been served on the said property, learned counsel is appearing on behalf of aforesaid owners whoare not the parties to the suit. He states that the suit property was given onrent to one Bittoo Singh and he will fiimish the entire details of Bittoo Singh along with the Statement of Accounts indicating, from which Account, the lease money was being received from Bittoo Singh so that necessary party in the suit which was allegedly infringing the plaintiffs trademark can be impleaded. Affidavit be filed within two weeks giving the complete details of Bittoo Singh along with his necessary bank details, Statement of Accounts as also the other details and documents in possession of the parties who have entered appearance, be filed before this Court. Affidavit will alsodisclose about as to whether the concerned persons are aware of, in whose possession, are the two mobile numbers i.e. 9821105285 and 9871433720 which are on the visiting cards of the Hotel Belmonk.".
5. Notice of this application was issued on the application to the impleaded alleged contemnors.
6. The affidavit dated 21.11.2022 has now been filed by Ms.Pushpa Sehrawat, claiming that she along with Mr.Rohan Sehrawat are the owners of the property which was given on rent to one Mr.Bittoo Singh. Along with the affidavit, certain documents are also claimed to have been filed, however, the same are not on record. The learned counsel for the plaintiff has handed over a copy thereof, and submits that the purported Lease Deed dated 21.04.2018, filed with these documents, clearly shows Ms.Sonika Sehrawat w/o Mr.Narender Kumar Sehrawat to be the lessor of the property.
Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:25.11.2022 18:01:07He submits that Mr.Narender Kumar Sehrawat is the person who had applied for registration of the trade mark "BELMONK/ "
with the Trade Marks Registry, and clearly, this is evidences a connection between the owners as also person who was running the hotel under the impugned trade mark. He submits that the owners of the property, on which the hotel is built, have clearly tried to mislead this Court by alleging that they have no connection with the contemnors.
7. I find prima facie merit in the submission made by the learned counsel for the plaintiff. Accordingly, on the oral request of the learned counsel for the plaintiff, Mr.Rohan Sehrawat, Ms.Sonika Sehrawat and Ms.Pushpa Sehrawat are also impleaded as alleged contemnors in this application.
8. Issue notice of this application.
9. Notice is accepted by Mr.Nishant Rewalia, the learned counsel, on behalf of the Ms.Pushpa Sehrawat, Ms.Sonika Sehrawat and Mr.Rohan Sehrawat.
10. Let notice of this contempt be served on the remaining-alleged contemnors, through all modes, including electronically, returnable on 28th February, 2023.
11. The alleged contemnors shall file their reply to the application within a period of four weeks from the date of receipt of notice. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.
Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:25.11.2022 18:01:0712. The learned counsel for the newly-added contemnors shall ensure that the documents filed alongwith the affidavit are brought on record.
I.A. 17870/201913. The learned counsel for the plaintiff submits that in spite of the ad- interim ex-parte order dated 17.12.2019, the hotel of the defendant appears in the listing of various third-party websites under the mark "BELMONK", which is deceptively similar to that of the plaintiff.
14. He submits that in spite of a request to third-party websites to take down such listing, the same has not been complied with.
15. Having heard the learned counsel for the plaintiff, and in view of the order dated 17.12.2019, the plaintiff is permitted to request the third-party websites to take down the listing of the defendant's hotel with the mark "BELMOND/BELMONK/ " within a period of 48 (Forty-Eight) hours of request being received from the plaintiff in this regard.
NAVIN CHAWLA, J NOVEMBER 23, 2022/Arya Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:25.11.2022 18:01:07