Bangalore District Court
Krishvi Projects Private Limited vs Krish-V Facility Management Services ... on 4 September, 2024
KABC170018962024
IN THE COURT OF LXXXV ADDL. CITY CIVIL &
SESSIONS JUDGE, AT BENGALURU (CCH-86)
(Commercial Court)
THIS THE 14th DAY OF AUGUST 2024
PRESENT:
SRI.ARJUN. S. MALLUR. B.A.L.LL.B.,
(CCH-86)
LXXXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.OS.No.970/2024
BETWEEN:
Krishvi Projects Private Limited,
A company registered under
the Companies Act, 1956,
having registered office at No.2,
"Krishvi," First Floor,
HAL Airport Road, Domlur,
Bengaluru -560 071.
: PLAINTIFF
(Represented by Sri.Ronak Chhabria.,Advocate)
AND
Krish-V Facility Management Services Private Limited,
A company registered under the
Companies Act, 2013,
having registered office at #1797,
1st Stage, 5th Block,
Com OS No.970/2024
HBR Layout,
Bengaluru - 560045.
Email ID: [email protected]
d
: DEFENDANT
(Ex-parte)
Date of Institution of the suit 15-07-2024
Nature of the suit (suit on
pronote, suit for declaration &
Possession, Suit for injunction Suit for recovery
etc.)
Date of commencement of 14-08-2024
recording of evidence
Date on which judgment was 04-09-2024
pronounced
Total Duration Year/s Month/s Day/s
00 01 20
(ARJUN. S. MALLUR)
LXXXV Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
Suit for permanent injunction restraining the defendant from infringing the trade mark of the plaintiff and passing off the trade mark "KRISHVI" and logo by using the deceptively similar "KRISH-V"
mark and logo and directing the defendant to deliver all passed off items in their possession where the 2 Com OS No.970/2024 passed off mark is used by the defendant, directing the defendant to render true and proper accounts of profit illegally earned by using infringed "Krish-V"
mark or logo and also to pay damages of Rs.50,00,000/-.
2. The case of the plaintiff is brief as under:-
The plaintiff is well reputed company engaged in real estate business carrying of the business in the name "KRISHVI Projects Private Limited". The plaintiff has collaborated in under taking top quality constructions, designs and development of properties and that plaintiff since 1996 has adopted a word mark "KRISHVI"/logo for all its projects. The plaintiff has carried out various prestigious projects in and around Bengaluru. The plaintiff is having a turnover of Rs.15,39,16,446/- for the period 2022-2023 and has spent huge amount of money on marketing and developing the wordmark "KRISHVI". The plaintiff has spent nearly a sum of Rs.4,57,09,914/- towards marketing.
The defendant is a subsidiary company of M/s.DS-MAX Properties Private Limited (Herein after referred as DS-MAX). The name of the defendant or defendant company is Krish-V Facility Management Services Private Limited which is phonetically and 3 Com OS No.970/2024 deceptively similar to the trade name of the plaintiff. The defendant is using wordmark "Krish-V" with the similar logo. It is submitted that though the defendant is also engaged in the business of construction and development of real estate projects the quality of services rendered by the defendant are not up to the mark and numerous complaints are filed against DS-MAX before the Karnataka Real Estate Regulatory Authority. It is submitted that several projects of DS-MAX are under investigation and there are numerous complaints regarding the quality of construction and kind of services being provided by DS-MAX properties. It is submitted that the plaintiff under takes providing facility management services which are essential to maintain projects till they are handed over to eventual buyers. The defendant company being aware about the name and reputation of the plaintiff company with the evil intention of causing disrepute to the plaintiff company has started making using of the trade mark "Krish-V" which phonetically sounds similar to the wordmark "KRISHVI" when pronounced. It is submitted that because of poor reputation of the defendant in the real estate market and because of defendant is using the phonetically similar word mark, the plaintiff company has been receiving 4 Com OS No.970/2024 several messages inquiring whether the properties run by the defendant is the properties belonging to the plaintiff. It is submitted that the defendant company by misusing the deceptive trade mark and passing off other services as that of the plaintiff resulting in the customer being confused of associating defendant company with plaintiff. It is submitted that the defendant has adopted deceitful trade name "Krish-V" only to induce the potential customers of the plaintiff which amounts to unfair trade practices. It is submitted that because of the deceptive trade mark used by the defendant the plaintiff has already suffered damage to its reputations for having successfully completed various projects and having earned goodwill in the real estate market.
It is submitted that if the defendant is not restrained by order of temporary injunction the reputation and goodwill earned by the plaintiff would be drastically affected resulting in huge loss of the plaintiff and hence the suit.
3. On service of summons the defendant has remained absent and has been placed as exparte.
5Com OS No.970/2024
4. The authorized person of the plaintiff filed affidavit by way of evidence as PW-1 and got marked documents at Ex.P-1 to Ex.P-40.
5. Heard the arguments for the learned counsel for the plaintiff. Perused the materials on record.
6. The points that arise for my consideration are:
1) Whether the plaintiff proves that defendant has infringed the word mark "KRISHVI" of the plaintiff by using infringed and similar trade mark "Krish-
V"?
2) Whether the plaintiff is entitled for relief of permanent injunction and for damages as prayed?
3) What order or decree?
7. My answers to the above Points are as under:
Point No.1:- In the Affirmative Point No.2:- Partly in the Affirmative Point No.3:- As per the final Order for the following;
REASONS 6 Com OS No.970/2024
8. POINT NO.1 & 2:-To avoid repetition of facts and evidence these issues are taken up together for answering.
The authorized signatory of the plaintiff filed his affidavit by way of evidence reiterating the averments made in the plaint. He has got marked documents at Ex.P-1 to Ex.P-40. Ex.P-1 is the Incorporation Certificate dated 13th January 1996. Ex.P.2 is the Memorandum of Association of the plaintiff. Ex.P.3 is the Articles of Association of the plaintiff. Ex.P.4 is the Board Resolution dated 10th July 2024. Ex.P.5 is the Incorporation certificate dated 10th August, 2022. Ex.P.6 is the Memorandum of Association of defendant. Ex.P.7 is the Articles of association of defendant. Ex.P.8 is the Brochure of projects of the plaintiff between 2007-2013. Ex.P.9 is the Brochure of Krishvi Gavakshi, 2014. Ex.P.10 is the Brochure of Krishvi Bougainvillea, 2015. Ex.P.11 is the Brochure of Krishvi Dhavala, 2016. Ex.P.12 is the Brochure of Krishvi Wisteria, 2017. Ex.P.13 is the Brochure of Krishvi Statura, 2021. Ex.P.14 is the Brochure of Krishvi e'Villa, 2022. Ex.P.15 is the Brochure of Krishvi 11 Campbell, 2023. Ex.P.16 is the Krishvi Calendar of 2016. Ex.P.17 is the Bangalore Times Advertisement (March 2021). Ex.P.18 is the Ongoing project details - https://www.krishvi.com/.
7Com OS No.970/2024 Ex.P.19 is the Statement of sales between 2007- 2024. Ex.P.20 is theCertificate of registration of the wordmark "KRISHVI". Ex.P.21 is the Statement of expenditure on Marketing between 2007-2024. Ex.P.22 is the Printout of the plaintiff's Instagram page- https://www.instagram.com/krishvi_projects/. Ex.P.23 is the Printout of the plaintiff's Facebook page - https://www.facebook.com/Krishvi_Projects/. Ex.P.24 is the Sample invoices, and other letters issued by the plaintiff using the "KRISHVI" wordmark. Ex.P.25 is the Website of defendant
-https://krishvfacilitymanagement.com/. Ex.P.26 is the Printout of the defendant's Instagram page - https://www.instagram.com/krishvfms/. Ex.P.27 is the Printout of the defendant's Facebook page - https://www.facebook.com/krishvfms/. Ex.P.28 is the Printout of the extract of the Master Data of the Defendant website of the Ministry of Corporate Affairs
-https://www.mca.gov.in/content/mca/global/en/mc a/master-data/MDS/company-master-info.html. Ex.P.29 is the Printout of the Mater Data of M/s. DS Max Properties Private Limited. Ex.P.30 is the List of Complaints as Extracted from the Website of Karnataka Real Estate Regulatory Authority. Ex.P.31 is the Projects under investigation of M/s.DS-Max Properties Private Limited as per the website of the 8 Com OS No.970/2024 Karnataka Real Estate Regulatory Authority. Ex.P.32 is the Printout of website available at URL-https://www.quora.com/ Ex.P.33 is the Printout of website available at URL - https://qr.ae/psQmJK, last accessed on 8th July 2024 at 12.10 AM IST Ex.P.34 is the Printout of website available at URL - https://qr.ae/psQm3m, last accessed on 8th July 2024 at 12:16 AM IST- Ex.P.35 is the Printout of website available at URL - https://qr.ae/psQmEY, last accessed on 8th July 2024 at 12:30 AM IST- Ex.P.36 is the Printout of website available at URL - https://consumerforums.in/ds-max-properties frauds, last accessed on 8th July 2024 at 12:53 AM IST- Ex.P.37 is the Sample-Management Service Agreements. Ex.P.38 is the Screenshot of the messages dated 4th July, 2024. Ex.P.39 is the Certificate under Section 63 of The Bharathiya Sakshya Adhiniyama, 2023. Ex.P.40 is the Online extract of trade mark registration of the plaintiff.
9. As already mentioned above the evidence of the plaintiff remained unchallenged as the defendant has remained absent in spite of service of summons. On going through the documents particularly the documents produced at Ex.P.25 to P.27, it is clear that the defendant is using trade mark "Krish-V" in 9 Com OS No.970/2024 its websites and social media handles which is deceptive and infringing trade mark of plaintiff. The unchallenged evidence on record substantially proves that the defendant is indulged in infringing word mark "KRISHVI" by using deceptively similar trade mark "Krish-V" and thereby it is caused harm to the reputation and goodwill of the plaintiff by indulging the customer to believe the projects carried out by the defendant is associated with the plaintiff. With regard to complaints, there are numerous complaints filed against DS-MAX projects which is evidenced in Ex.P.30 and also the screenshot and messages at Ex.P.38 and also the photographs contained in the messages which would definitely indicate the quality of construction by DS-MAX properties through defendant which is subsidiary of DS-MAX properties has been largely compromised and there are innumerous complaints against them. The defendant by using the deceptive trade mark "Krish-V" is trying to portray plaintiff in a bad manner by making the people to believe that the projects carried out by defendant is associated with the plaintiff and there by severe harm and damage has been caused to the reputation of the plaintiff. Therefore under these circumstance the plaintiff would be entitled for the relief of permanent injunction as prayed.
10Com OS No.970/2024
10. Apart from seeking relief of permanent injunction the plaintiff is also seeking the direction to the defendant to render true and proper accounts of the profits illegally earned by them by using infringed Krish-V trade mark and also by compensating damages of Rs.50,00,000/-. With respect to the same no acceptable evidence is adduced before the Court. The plaintiff had failed to produce any cogent and satisfactory evidence to show that by infringing "Krish-V" trade mark and by using it the defendant has earned profits and at the costs of the plaintiff and also there is no cogent evidence regarding the plaintiff having suffered of the huge business loss on account of defendant using the deceptive word mark in its projects. Therefore in the absence of any evidence merely because the defendant has not participated in the proceeding the plaintiff cannot be granted the reliefs of damages as prayed. Accordingly, I answer Point No.1 in the Affirmative and point No.2 Partly in the affirmative.
11. POINT NO.3:- In view of my findings on Point No.1, I proceed to pass the following;
11Com OS No.970/2024 ORDER The suit of the plaintiff is decreed in part with costs.
The defendant, or any other company in their group of companies, affiliates, subsidiaries, assigns, successors, or anyone claiming through or under them are restrained by order of permanent injunction from infringement of trade mark of plaintiff and passing off the plaintiff's trademark "KRISHVI"/logo by using deceptively similar "Krish-V" mark/ logo or any other phonetically similar trademark to the plaintiff's word mark in any trade name or trading style for facility management or real estate business.
The defendant is also directed to deliver all passed off items in their possession where the passed off marks are used by the defendant including packaging, labels, printing materials, catalogues, brochures etc to the authorized representative of the plaintiff for destruction.
12Com OS No.970/2024 The defendant is directed to take down their website and Facebook and Instagram pages available at the following URLs:
i) https://krishvfacilitymanagement.com/
ii)https://www.facebook.com/krishvfms/?/ locate=ji_IN
iii) https://www.instagram.com/krishvfms/ The claim of the plaintiff for direction to the defendant to render accounts for the profits and to pay damages is rejected.
Draw decree accordingly.
[Dictated to the Stenographer Grade-III, transcribed by her, corrected and signed by me then pronounced in the Open Court, dated this the 4th day of September 2024] Digitally signed by ARJUN ARJUN SRINATH SRINATH MALLUR Date: 2024.09.04 MALLUR 17:27:53 +0530 (ARJUN. S. MALLUR) LXXXV Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF DOCUMENTS PRODUCED ON BEHALF OF THE PLAINTIFF ALONG WITH PLAINT PW-1 Arhanth Dinesh LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF 13 Com OS No.970/2024 Ex.P.1 Incorporation Certificate dated 13th January 1996. Ex.P.2 Memorandum of Association of the plaintiff. Ex.P.3 Articles of Association of the plaintiff. Ex.P.4 Board Resolution dated 10th July 2024. Ex.P.5 Incorporation certificate dated 10th August, 2022. Ex.P.6 Memorandum of Association of defendant. Ex.P.7 Articles of association of defendant. Ex.P.8 Brochure of projects of the plaintiff between 2007- 2013.
Ex.P.9 Brochure of Krishvi Gavakshi, 2014. Ex.P.10 Brochure of Krishvi Bougainvillea, 2015. Ex.P.11 Brochure of Krishvi Dhavala, 2016. Ex.P.12 Brochure of Krishvi Wisteria, 2017. Ex.P.13 Brochure of Krishvi Statura, 2021. Ex.P.14 Brochure of Krishvi e'Villa, 2022. Ex.P.15 Brochure of Krishvi 11 Campbell, 2023. Ex.P.16 Krishvi Calendar of 2016. Ex.P.17 Bangalore Times Advertisement (March 2021). Ex.P.18 Ongoing project details - https://www.krishvi.com/ Ex.P.19 Statement of sales between 2007-2024. Ex.P.20 Certificate of registration of the wordmark "KRISHVI".
Ex.P.21 Statement of expenditure on Marketing between 2007-2024.
Ex.P.22 Printout of the plaintiff's Instagram page - https:// www.instagram.com/krishvi_projects/ Ex.P.23 Printout of the plaintiff's Facebook page -
https://www.facebook.com/Krishvi_Projects/ Ex.P.24 Sample invoices, and other letters issued by the plaintiff using the "KRISHVI" wordmark.
Ex.P.25 Website of defendant -
https://krishvfacilitymanagement.com/.
14Com OS No.970/2024 Ex.P.26 Printout of the defendant's Instagram page -
https://www.instagram.com/krishvfms/ Ex.P.27 Printout of the defendant's Facebook page -
https://www.facebook.com/krishvfms/ Ex.P.28 Printout of the extract of the Master Data of the Defendant website of the Ministry of Corporate Affairs -
https://www.mca.gov.in/content/mca/global/en/mc a/master-data/MDS/company-master-info.html Ex.P.29 Printout of the Mater Data of M/s. DS-Max Properties Private Limited.
Ex.P.30 List of Complaints as Extracted from the Website of Karnataka Real Estate Regulatory Authority. Ex.P.31 Projects under investigation of M/s.DS-Max Properties Private Limited as per the website of the Karnataka Real Estate Regulatory Authority. Ex.P.32 Printout of website available at URL -
https://www.quora.com/ Ex.P.33 Printout of website available at URL -
th https://qr.ae/psQmJK, last accessed on 8 July 2024 at 12.10 AM IST Ex.P.34 Printout of website available at URL -
https://qr.ae/psQm3m, last accessed on 8th July 2024 at 12:16 AM IST-
Ex.P.35 Printout of website available at URL -
th https://qr.ae/psQmEY, last accessed on 8 July 2024 at 12:30 AM IST-
Ex.P.36 Printout of website available at URL -
https://consumerforums.in/ds-max-properties- frauds, last accessed on 8th July 2024 at 12:53 AM IST -
Ex.P.37 Sample - Management Service Agreements. Ex.P.38 Screenshot of the messages dated 4th July, 2024. Ex.P.39 Certificate under Section 63 of The Bharathiya Sakshya Adhiniyama, 2023.
Ex.P.40 Online extract of trade mark registration of the 15 Com OS No.970/2024 plaintiff.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT NIL (ARJUN. S. MALLUR) LXXXV Addl.City Civil & Sessions Judge, Bengaluru.
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