Madras High Court
M/S.Matrimony.Com Limited vs Thodu Needa Telugu Matrimony on 2 January, 2019
Equivalent citations: AIR 2019 MADRAS 133
Author: M.Sundar
Bench: M.Sundar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 02.01.2019
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR
C.S.No.634 of 2018
and O.A.Nos.850 to 853 of 2018
M/s.Matrimony.com Limited
No.94, TVH Beliciaa Towers
Tower-2, 10th Floor
MRC Nagar, Mandaveli
Chennai – 600 028
Rep. by its General Manager-Legal & Regulatory
Mr.S.Ravichandran ..Plaintiff
Vs.
Thodu Needa Telugu Matrimony
6-1-338/12, 2nd Floor
Beside Saibaba Temple
Padmarao Nagar, Secunderabad. .. Defendant
This Civil Suit is preferred, under Order IV Rule 1 of the Original Side
Rules and Order VII, Rule 1 of the CPC read with Sections 27, 28, 29, 134
and 135 of the Trade Marks Act, 1999 and Section 7 of The Commercial
Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, No.4 of 2016 praying to grant
a) a permanent injunction, restraining the defendant by themselves,
their directors, partners, men, servants, agents, broadcasters,
representatives, advertisers, franchisees, licensees and/or all other persons
acting on their behalf from in any manner infringing and/or enabling others
to infringe plaintiff's registered trademarks TELUGUMATRIMONY and/or its
http://www.judis.nic.in
2
variants by using the identical trademark TELUGUMATRIMONY as part of the
SEO headline, in the Google ad-text or as a keyword for internet search or
as meta tag in any other manner whatsoever;
b) a permanent injunction restraining the defendant, by themselves,
their directors, partners, men, servants, agents, broadcasters,
representatives, advertisers, franchisees, licensees and/or all other persons
acting on their behalf from in any manner diverting the plaintiff's business
to themselves by using Google's search engine in which the plaintiff's
trademark TELUGUMATRIMONY and DOMAIN NAME TELUGUMATRIMONY.COM
and/or its variants, by using as Adwords, Keyword Suggestion Tool, as part
of SEO headline or as a keyword for the internet search and/or as meta tags
and thereby passing off the business and services of the defendant as that
of the plaintiff or in any other manner whatsoever;
c) a permanent injunction restraining the defendant, themselves,
their partners, successors-in-business, servants, agents, representatives,
assigns and all other persons claiming under them and through them from
using or redirecting to the domain names www.telugumatrimony.org,
www.reddytelugumatrimony.com and www.vanjaritelugumatrimony.com or
any other domain name that is identical and/or deceptively similar to that
of the plaintiff's domain name www.telugumatrimony.com in any manner
whatsoever;
d) a permanent injunction restraining the defendant, themselves,
their partners, successors-in-business, servants, agents, representatives,
assigns and all other persons claiming under them and through them from
using any Applications (APP) identical and/or deceptively similar to that of
the plaintiff's app 'TeluguMatrimony' or any other 'APP' that is identical
and/or deceptively similar to that of the plaintiff's domain name
'TeluguMatrimony' in any manner whatsoever;
e) the defendant be directed to surrender to the plaintiff for
http://www.judis.nic.in
3
destruction all compact discs, master copy, advertising materials,
pamphlets, brochures, etc, which bears the plaintiff's registered trademarks
and/or any other variants which is phonetically and/or deceptively identical
and/or similar to the plaintiff's registered trademarks or in any other form
whatsoever;
f) award damages of Rs.10,00,000/- for infringing and/or for passing
off and/or for enabling others to infringe and/or pass off the plaintiff's
trademarks and domain names;
g) a preliminary decree be passed in favour of the plaintiff directing
the defendant to render account of profits made by use of trademark
TELUGUMATRIMONY and final decree be passed in favour of the plaintiff for
the amount of profits thus found to have been made by the defendants
after the latter have rendered accounts;
h) for costs of the suit ; and
i) pass such further and other orders and issue directions, as this
Hon'ble Court may deem fit and necessary in the circumstances of the case
and thus render justice.
For Plaintiff : Ms.Durga V. Bhatt
For Defendant : Set ex-parte
JUDGMENT
There is a sole plaintiff and a lone defendant in this suit.
2. Ms.Durga V. Bhatt, learned counsel on record for sole plaintiff is before this Commercial Division. Learned counsel, adverting to the plaint, http://www.judis.nic.in 4 submitted that plaintiff is a pioneer in using internet as a vehicle/platform for matrimonial alliances, especially matrimonial alliances in India and for people of Indian origin living abroad. It is also submitted that plaintiff is a leading matrimonial portal and has a huge reputation/goodwill in the international market including India. To be noted, plaintiff is a juristic person. In other words, plaintiff is a public limited company, which goes by the name 'Matrimony.com Limited'. Though plaintiff was incorporated in this name in India in 2001, plaintiff started its internet business in the year 1997 using the domain name www.bharatmatrimony.com which has been registered in 1999 for online matrimonial services, is learned counsel's say. Besides this, plaintiff in the subsequent years has registered several domain names such as www.tamilmatrimony.com, www.telugumatrimony.com, www.bengalimatrimony.com, www.muslimamatrimony.com etc., According to learned counsel for plaintiff, this is for regional customers.
3. It is also submitted that certain internal arrangements were made, pursuant to which a special resolution under Section 21 of the Companies Act, 1956 was passed for change of name of plaintiff company. Suffice to say that name of the plaintiff company is as it stands today i.e., 'Matrimony.com Limited' and the relevant certificate from the jurisdictional Registrar of Companies has been filed and marked as Ex.P2. http://www.judis.nic.in 5
4. It is further submitted by learned counsel for plaintiff that some time in March 2018, plaintiff gained knowledge about infringement of it's trademarks and domain name. It is submitted that on gaining such knowledge, plaintiff issued a series of Cease and Desist Notices, to which the defendant sent a reply dated 09.07.2018 containing bare and bald denial without offering any explanation and without even attempting to explain as to how and why the defendant is entitled to use the offending marks and domain name.
5. This has resulted in plaintiff presenting the instant suit in this Commercial Division on 10.09.2018 with prayers inter alia for injunctive reliefs qua plaintiff's registered trademarks, passing off qua domain name, and mobile applications. Besides these injunctive reliefs, usual prayers for surrender of offending materials, damages of Rs.10 lakhs, prayer for accounts, costs and the usual residuary limb of prayers have also been made.
6. Before I proceed further, it is necessary to trace the trajectory of this suit and the interlocutory applications therein.
7. As mentioned supra, instant suit was presented in this Commercial http://www.judis.nic.in 6 Division by the plaintiff on 10.09.2018 and along with the plaint, interlocutory applications seeking temporary interim injunctions were taken out. This Commercial Division granted temporary interim injunctions in O.A.Nos.852 and 853 of 2018 on 14.09.2018. These orders of interim injunctions were extended until further orders and are operating now. To be noted, prayers in these two interlocutory applications are as follows:
Prayer in O.A.No.852 of 2018:
'.... to grant an interim injunction restraining the respondent, themselves, their partners, successors-in-business, servants, agents, representatives, assigns and all other persons claiming under them and through them from using or redirecting to the domain name www.telugumatrimony.org, www.reddytelugumatrimony.com, www.vanjaitelugumatrimony.com or any other domain name that is identical and/or deceptively similar to that of the applicant's domain name www.telegumatrimony.com in any manner whatsoever, pending disposal of the suit...' Prayer in O.A.No.853 of 2018 '...to grant an interim injunction restraining the respondent, themselves, their partners, successors-in-business, servants, agents, representatives, assigns and all other persons claiming under them and through them from using any Applications (APP) identical and/or deceptively similar to that of the appellant's APP 'TeluguMatrimony' or any other 'APP' that is identical and/or deceptively similar to that of the applicant's domain name 'TeleuMatrimony' in any manner whatsoever, pending disposal of the suit...' http://www.judis.nic.in 7
8. Order XXXIX Rule 3 of 'The Code of Civil Procedure, 1908' ('CPC' for brevity) was duly complied. Thereafter, sole defendant, on being served, entered appearance through a counsel, but vakalat was returned, it was never re-presented and the defendant ultimately did not come before this Court much less, did the defendant complete pleadings by filing written statement. This is captured in the proceedings of this Commercial Division dated 15.11.2018, 20.11.2018 and 30.11.2018, which read as follows:
Dated: 15.11.2018 'Mr.Arun C.Mohan, learned counsel on record for sole plaintiff is before this Commercial Division.
2. From the cause list it is seen that M/s.S.Rama Sharma and P. Padma, have entered appearance on behalf of sole defendant vide Diary No.41964/2018, but the Vakalat has been returned.
3. To be noted, name of the said counsel is shown in the cause list today, though the vakalat has been returned (name of the counsel is shown along with the endorsement that vakalat has been returned).
4. Notwithstanding the aforesaid position, there is no representation for the sole defendant.
List on 20.11.2018.' Dated: 20.11.2018 'Read this in conjunction with and in continuation of earlier proceedings of this Commercial Division dated http://www.judis.nic.in 8 15.11.2018.
The position is no different today. In other words, the same position remains today.
Registry to list this matter in the 'UNDEFENDED BOARD' on 30.11.2018.' Dated: 30.11.2018.
'Read this in conjunction with and in continuation of earlier proceedings of this Commercial Division dated 20.11.2018.
2. Suit is listed under the caption 'UNDEFENDED BOARD' today. There is no representation for the sole defendant.
3. It is pointed out that the time prescribed for completion of pleadings is now over and no written statement has been filed. Sole defendant is set ex-parte.
4. List this matter before learned Additional Master-II on 17.12.2018 for recording ex-parte evidence. Learned Additional Master-II is requested to record ex-parte evidence preferably on the same day and in any event on or before 19.12.2018.
5. Thereafter, list this matter before this Commercial Division under the caption 'ORAL ARGUMENTS' on 21.12.2018.
9. A perusal of the aforesaid proceedings will also reveal that this suit was listed in the 'UNDEFENDED BOARD'. Thereafter, the sole defendant was set ex parte.
10. On being set ex parte, this suit was set down for recording ex parte evidence before learned Additional Master-II on 18.12.2018. One http://www.judis.nic.in 9 Mr.S.Ravichandran, who has been described as General Manager - Legal & Regulatory in the plaintiff company has deposed as P.W.1 and as many as 16 documents i.e., Exs.P1 to P16 have been marked.
11. Thereafter, this suit is listed today before this Commercial Division under the caption 'FOR ARGUMENTS'. To be noted, even today, the name of the counsel, who entered appearance on behalf of the sole defendant and whose vakalat was returned has been shown in the cause list, but none appears.
12. This Commercial Division proceeded to hear the arguments.
13. Having captured the trajectory of this suit and the interlocutory applications therein thus far, it is necessary to set out short facts in a nutshell as far as this lis itself is concerned.
14. As mentioned supra, this Commercial Division granted interim orders in O.A.Nos.852 and 853 of 2018 vide a common order dated 14.09.2018 and this common order captures the factual matrix of this lis in a nutshell. This Commercial Division deems it appropriate to extract paragraphs 2 to 9 of the said order, which read as follows:
'......2.Central theme of this suit is constituted by two registered trademarks. The two registrations are for the word mark 'TELUGUMATRIMONY'. Plaintiff has a trade mark http://www.judis.nic.in 10 registration in Class 16 being Trade Mark No.1306420 with effect from 01.09.2004, vide certificate no.457469 and the registration is valid up to 01.09.2024. Plaintiff also has a registration for the aforesaid trade mark in Class 99, i.e., multi-class registration under no.2007944. It is submitted by learned counsel for plaintiff that the registration under class 99 is also valid and subsisting.
3.As mentioned supra, registrations of the trade mark 'TELUGUMATRIMONY' in classes 16 and 99 being two registrations, constitute the central theme of this lis.
4.Ms.Durga V.Bhatt, learned counsel on record for the plaintiff, submits that some time in March 2018, plaintiff came to know that the defendant has hosted a website with a domain name and is using aids to its application. In other words, it is the specific submission of learned counsel that defendant is infringing plaintiff's aforesaid registrations qua trade mark being TELUGUMATRIMONY.
5.Plaintiff has a large business and the defendant's aforesaid infringement is causing loss and hardship to the plaintiff, is plaintiff's counsel say. It is her further say that plaintiff has been using the aforesaid trade mark, i.e.,TELUGUMATRIMONY, for a substantial length of time whereby it has become distinctive and has attained goodwill and reputation, which, according to her, is enviable.
6.Saying so, learned counsel submitted that on gaining knowledge sometime in March of 2018 about infringement of plaintiff's aforesaid trade mark by the defendant, cease and desist notice dated 17.03.2018 was issued. It is submitted that it did not evince response or reply, though it was duly served on the defendant. It is also submitted that the said cease and desist notice dated 17.03.2018 was followed by as http://www.judis.nic.in 11 many as four cease and desist notices dated 23.03.2018, 09.04.2018, 24.04.2018 and 15.06.2018. Copies of all these five cease and desist notices have been placed before me as part of the suit file, i.e., plaint document nos.23 to 27. After the 5th cease and desist notice dated 15.06.2018, the defendant has sent a reply dated 09.07.2018 which contains only a bare and complete denial of the allegations without offering any explanation and without explaining as to how and why the defendant is entitled to use the marks, which, according to the plaintiff, are infringing plaintiff's registered trade mark.
7.To be noted, the trade mark registration certificates of the two aforesaid registrations, which constitute the central theme of this lis, have been filed as plaint document nos.3 and 4. Referring to plaint document nos.3 and 4, learned counsel submits that there is absolutely no disclaimer, restriction or any other rider with regard to these two registrations. This submission is taken on record.
8.In the light of the aforesaid narrative, particularly in the light of the fact that plaintiff has sent as many as five cease and desist notices over a period of three months, i.e., between 17.03.2018 and 15.06.2018, which has evinced only a bare denial without any explanation or basis for using the alleged infringing mark, that too after the fifth cease and desist notice, I am of the view that plaintiff is entitled to ex parte ad interim orders at this stage in these two applications.
9.This is more so, as issuing notice will entail delay which can defeat the object of the interim orders in the light of the narrative supra and in the light of the pre-suit cease and desist notices which have been alluded to supra....' http://www.judis.nic.in 12
15. This takes us to 16 exhibits that have been marked before learned Additional Master II, details of which are as follows:
S.No. Exhibits Description of documents
1. Ex.P1 The original Board resolution in my favour
2. Ex.P2 The Photocopy of fresh Incorporation certificate
3. Ex.P3 Ex.P3 series (3 pages) are the Webpage extracts
of www.godaddy.com showing the ownership of
plaintiff's domain name along with
affidavit/certificate under Section 65B of the Indian Evidence At, 1872.
4. Ex.P4 Ex.P4 Series (15 pages) are the printout along with Sec 65B affidavit and photocopies of articles published in various newspapers and magazines.
5. Ex.P5 Ex.P5 Series (3 pages) are the Webpage extracts, along with affidavit/certificate under Section 65B of the Indian Evidence Act, 1872, reflecting the various awards, accolades, achievements and acknowledgements conferred on the plaintiff.
6. Ex.P6 Ex.P6 Series (4 pages) are the certified copy (original compared and returned) of the mark 1306420 and copy of registration certificate along with journal advertisement for the mark 2007944 along with Sec 65B affidavit for the mark 2007944.
7. Ex.P7 Ex.P7 series (4 pages) are the certified copies for the mark BHARATMATRIMONY bearing numbers 1335999 and 1548863 (original compared and returned)
8. Ex.P8 Ex.P8 series (61 pages) are Original invoices raised by advertising agency proving publication of ads for the mark TELUGUMATRIMONY (Compared and returned) 9 Ex.P9 Ex.P9 is the photocopy of a news article dated 26.09.2009 published in Business Standard newspaper along with affidavit/certificate under Section 65B of the Indian Evidence Act showing the plaintiff as top online advertiser.
10 Ex.P10 Ex.P10 is the screen shot of Google's webpage along with affidavit/certificate under Section 65B of the Indian Evidence Act showing search results http://www.judis.nic.in 13 S.No. Exhibits Description of documents for the plaintiff's trademark TELUGUMATRIMONY. 11 Ex.P11 Ex.P11 series (4 pages) are Webpage extracts along with affidavit/certificate under Section 65B of the Indian Evidence Act of Plaintiff's website www.telugumatrimony.com 12 Ex.P12 Ex.P12 series (4 pages) are the Webpage extracts of the defendant's www.telugumatrimony.org, www.HYPERLINK''http://www.reddytelugumatrim ony.com/''reddytelugumatrimony.com and www.HYPERLINK''http://www.vanjaritelugumatri mony.com/''vanjaritelugumatrimony.com websites along with affidavit/certificate under Section 65B of the Indian Evidence Act.
13 Ex.P13 Ex.P13 series (11 pages) are the Notice issued by plaintiff to defendant by e-mails and through counsel dated 17th March 2018, 23rd March 2018, 9th April 2018, 24th April 2018 and 15th June 2018. 14 Ex.P14 Ex.P14 is the original reply notice received from counsel for defendant dated 09.07.2018.
15 Ex.P15 Ex.P15 series (6 pages) are the screen shots of defendant's websites www.telugumatrimony.org, www.HYPERLINK''http://www.reddytelugumatrim ony.com/''reddytelugumatrimony.com, www.HYPERLINK''http://www.vanjaritelugumatri mony.com/''vanjaritelugumatrimony.com dated 15.11.2018 and 10.12.2018, subsequent to injunction dated 14.09.2018 being granted against the defendant, proving violation and breach of the order passed by this Hon'ble Court.
16 Ex.P16 Ex.P16 is the affidavit under Section 65B of the Evidence Act, 1872 of Mr.S.Ravichandran.
16. Taking me through the exhibits, learned counsel for plaintiff submits that Ex.P1 is the original Board Resolution being a Circular Resolution dated 04.06.2016, wherein the aforesaid P.W.1 Mr.S.Ravichandran, General Manager-Legal & Regulatory of the plaintiff company has been authorized to depose on behalf of plaintiff. There is also http://www.judis.nic.in 14 a reference to the name change of the plaintiff company and as to how the plaintiff company came into existence in the present name, viz., 'Matrimony.com Limited'. Ex.P2 is a certificate of Incorporation issued by the jurisdictional Registrar of Companies and this certificate is dated 02.01.2015. Ex.P3 series consists of 3 pages and they are the Webpages extract of plaintiff's domain name. This buttresses the ownership of plaintiff's domain name. To be noted, Ex.P3 has been filed along with a certificate under section 65B of 'The Indian Evidence Act, 1872' ( hereinafter referred to as 'Evidence Act' for brevity). Learned counsel submits that Ex.P3 establishes plaintiff's domain name.
17. Ex.P4 series consists of 15 pages and these are printouts along with affidavit under Section 65B of Evidence Act, showing articles published in various newspapers and magazines. Likewise, Ex.P5 series consists of 3 pages, Ex.P5 has also been filed along with affidavit under Section 65 B of Evidence Act and this reflects various awards, accolades, achievements and acknowledgments qua the plaintiff. Learned counsel submits that Exs.P4 and Ex.P5 go together, they buttress/bolster plaintiff's pleadings regarding reputation qua the plaintiff's registered trademarks and domain name which have been alluded to supra.
18. Ex.P6 series consists of 4 pages. Pages 1 and 2 are Trade Mark http://www.judis.nic.in 15 Registration Certificates vide Trade Mark No.1306420 in class 16 with effect from 01.09.2004 vide certificate No.457469. Pages 3 and 4 pertain to Trade Mark Registration of plaintiff in class 99 i.e., Multi-class Registration Under No.2007944. Both the Trade Mark Registrations are subsisting, is learned counsel's say. Ex.P7 series consists of 4 pages and they are original trade mark Registration certificates with regard to BHARATMATRIMONY bearing numbers 1335999 and 1548863 which was one of the earliest marks adopted by the plaintiff which has been alluded to supra.
19. Ex.P8 series consists of 61 pages. Learned counsel brings to the notice of this Commercial Division that these are 61 invoices raised by various advertising companies on the plaintiff. According to the learned counsel, these 61 invoices raised by various advertising companies on the plaintiff have been marked to show that plaintiff has been incurring huge expenditure for advertising and popularizing it's marks and domain name which are subject matter of this lis.
20. Ex.P9 is a photocopy of a news article dated 26.09.2009, published in a newspaper, which goes by the name 'Business Standard'. To be noted, Ex.P9 has also been filed along with an affidavit under Section 65B of Evidence Act. Learned counsel submits that Ex.P9 also goes hand in hand with Exs.P4 and P5 which have been alluded to supra. Exs.P4, P5 and http://www.judis.nic.in 16 P9 together buttress and bolster plaintiff's pleadings regarding its reputation qua their marks and domain name, is learned counsel's say. Ex.P10 is a Screen shot of Google's webpage showing the results of plaintiff's trademark TELUGUMATRIMONY. This has also been filed along with a certificate under Section 65 B of Evidence Act. Likewise, Ex.P11 series consists of 4 pages of webpage extracts for the website www.telugumatrimony.com. According to learned counsel for plaintiff, Ex.P11 reveals login webpage when a person/customer clicks on the plaintiff's domain name. This takes us to Ex.P12 series. Ex.P12 series consists of 4 webpages extract of the defendant's websites viz., www.telugumatrimony.org, www.reddytelugumatrimony.com and www.vanjaritelugumatrimony.com. Ex.P12 has also been filed along with certificate under Section 65B of Evidence Act. It is submitted that Ex.P12 reveals that there is a clear infringement of plaintiff's trademarks and domain name.
21. This takes us to the series of Cease and Desist Notices and the reply dated 09.07.2018 from the sole defendant which have been alluded to supra. The five Cease and Desist Notices dated 17.03.2018, 23.03.2018, 09.04.2018, 24.04.2018 and 15.06.2018 have been marked as Ex.P13 series and consist of 11 pages in all. The lone reply from the sole defendant dated 09.07.2018 has been marked as Ex.P14. As mentioned supra, in Ex.P14 is http://www.judis.nic.in 17 only a bare and bald denial without any explanation as to how the defendant is entitled to use the offending marks i.e., the marks and the domain name as in Ex.P12. It is submitted by learned counsel for plaintiff that even after interim orders of this Commercial Division dated 14.09.2018, the infringement continues unabated and for this purpose Ex.P15 series consisting of 6 pages have been marked. Ex.P15 series are Screen shots of defendant's websites viz., www.telugumatrimony.org, www.reddytelugumatrimony.com and www.vanjaritelugumatrimony.com. dated 15.11.2018 and 10.12.2018. To be noted, this is subsequent to the aforesaid interim injunction dated 14.09.2018, which is now operating.
22. Ex.P16 is the affidavit of PW.1 under Section 65 B of Evidence Act.
23. In the aforesaid backdrop, this Commercial Division was taken through the deposition of P.W.1. A perusal of deposition of P.W.1 shows that his evidence is cogent and convincing. It supports, buttresses and bolsters the plaint averments. This takes us to the prayer paragraph in the plaint. Prayer paragraph in the plaint is paragraph No.23 and the same reads as follows:
'23.The plaintiff therefore prays that this Hon'ble Court may be pleased to grant a judgment and decree on the http://www.judis.nic.in 18 following terms:
a) a permanent injunction, restraining the defendant by themselves, their directors, partners, men, servants, agents, broadcasters, representatives, advertisers, franchisees, licensees and/or all other persons acting on their behalf from in any manner infringing and/or enabling others to infringe plaintiff's registered trademarks TELUGUMATRIMONY and/or its variants by using the identical trademark TELUGUMATRIMONY as part of the SEO headline, in the Google ad-text or as a keyword for internet search or as meta tag in any other manner whatsoever;
b) a permanent injunction restraining the defendant, by themselves, their directors, partners, men, servants, agents, broadcasters, representatives, advertisers, franchisees, licensees and/or all other persons acting on their behalf from in any manner diverting the plaintiff's business to themselves by using Google's search engine in which the plaintiff's trademark TELUGUMATRIMONY and DOMAIN NAME TELUGUMATRIMONY.COM and/or its variants, by using as Adwords, Keyword Suggestion Tool, as part of SEO headline or as a keyword for the internet search and/or as meta tags and thereby passing off the business and services of the defendant as that of the plaintiff or in any other manner whatsoever;
c) a permanent injunction restraining the defendant, themselves, their partners, successors-in-business, servants, agents, representatives, assigns and all other persons claiming under them and through them from using or redirecting to the domain names www.telugumatrimony.org, www.reddytelugumatrimony.com and www.vanjaritelugumatrimony.com or any other domain name that is identical and/or deceptively similar to that of the http://www.judis.nic.in 19 plaintiff's domain name www.telugumatrimony.com in any manner whatsoever;
d) a permanent injunction restraining the defendant, themselves, their partners, successors-in-business, servants, agents, representatives, assigns and all other persons claiming under them and through them from using any Applications (APP) identical and/or deceptively similar to that of the plaintiff's app 'TeluguMatrimony' or any other 'APP' that is identical and/or deceptively similar to that of the plaintiff's domain name 'TeluguMatrimony' in any manner whatsoever;
e) the defendant be directed to surrender to the plaintiff for destruction all compact discs, master copy, advertising materials, pamphlets, brochures, etc, which bears the plaintiff's registered trademarks and/or any other variants which is phonetically and/or deceptively identical and/or similar to the plaintiff's registered trademarks or in any other form whatsoever;
f) award damages of Rs.10,00,000/- for infringing and/or for passing off and/or for enabling others to infringe and/or pass off the plaintiff's trademarks and domain names;
g) a preliminary decree be passed in favour of the plaintiff directing the defendant to render account of profits made by use of trademark TELUGUMATRIMONY and final decree be passed in favour of the plaintiff for the amount of profits thus found to have been made by the defendants after the latter have rendered accounts;
h) for costs of the suit ; and
i) pass such further and other orders and issue directions, as this Hon'ble Court may deem fit and necessary in the circumstances of the case and thus render justice.' http://www.judis.nic.in 20
24. A perusal of prayer paragraph will reveal that there are as many as nine limbs of prayer in the prayer paragraph which have been set out as sub-paragraphs (a) to (i) of plaint prayer paragraph.
25. From all that have been set out supra, this Commercial Division is convinced that plaintiff has proved its claims with regard to prayers contained in sub-paragraphs (a), (b), (c) and (d). Plaintiff is entitled to injunctive reliefs and decree as prayed for in sub-paragraphs (a) to (d) of the plaint prayer paragraph. It therefore follows as a necessary and inevitable sequitur that plaintiff will be entitled to surrender of offending material as well as rendition of accounts and profits. Therefore, plaintiff will be entitled to decrees as sought for in sub-paragraphs (e) and (g) also. With regard to sub-paragraph (f), owing to the recalcitrant attitude of the defendant, there is no material before this Commercial Division as of today which can enable this Commercial Division to quantify the damages. However, as mentioned supra, in the light of Ex.P15, it is clear that defendant is continuing the use of alleged offending marks qua plaintiff's trademarks as well as domain name unabated, notwithstanding, interim order dated 14.09.2018 and notwithstanding the same operating even as of now. Therefore, there can be no two opinions about the fact that the plaintiff is certainly entitled to damages.
26. This takes us to the prayers in sub-paragraphs (h) and (i). While, http://www.judis.nic.in 21 prayer in sub-paragraph (h) is for costs, prayer in sub-paragraph (i) is the usual residuary limb contained in any prayer paragraph.
27. In the light of the narrative supra, this Commercial Division deems it appropriate to consider the reliefs which the plaintiff will be entitled to under sub-paragraphs (f), (h) and (i) together.
28. With regard to sub-paragraph (f), the opinion/view of this Commercial Division has already been set out supra. With regard to costs, in the light of the trajectory extracted and reproduced supra, plaintiff is certainly entitled to costs of the suit and therefore plaintiff is entitled to prayer as contained in sub-paragraph (h) of prayer paragraph. With regard to residuary limb of the prayer contained in sub-paragraph (i), this Commercial Division deems it appropriate to refer to Section 35-A of CPC as amended by 'The Commercial Courts Act, 2015' ('said Act' for brevity). In the light of amended Section 35-A of C.P.C as amended by said Act, there is no upper limit or financial cap for award of compensatory costs. Section 35-A deals with compensatory costs with regard to false or vexatious defence. This Commercial Division has already held and taken a view in other suits that a defendant, who is recalcitrant and who after receipt of suit summons does not come before this Court, but continues to use the offending marks and continues to use the offending marks unabated, is certainly a vexatious http://www.judis.nic.in 22 manner of defending a suit and this also will qualify as vexatious defence under Section 35-A. In the instant case, the vexatious manner of defending the suit is amplified and aggravated as the defendant has entered appearance through a counsel but the counsel has not chosen to come before this Court. It is further aggravated as no written statement has been filed and the counsel has not chosen to come before this Court and report in one manner or other though the name of the counsel is shown in the cause list. Notwithstanding the fact that vakalat has been returned for certain defects. As mentioned supra, the name of the counsel is shown in the cause list even today.
29. Most importantly, this vexatious and recalcitrant conduct of the defendant is aggravated by the defendant's continued use of the alleged offending marks and the domain name unabated on the teeth of interim orders of this Court which have been duly served on the defendant, as order XXXIX Rule 3 of C.P.C has been complied as mentioned supra. To be noted, defendant has even entered appearance through a counsel.
30. Owing to all these aspects of the matter, considering sub- paragraphs (f) and (i) together, this Commercial Division is convinced that plaintiff is entitled to damages as well as compensatory costs which in the light of the recalcitrant attitude of the defendant can be put at http://www.judis.nic.in 23 Rs.10,00,000/- (Rupees Ten Lakhs only). It is made clear that plaintiff will be entitled to initiate and pursue all remedies available today in law for the breach continuing unabated.
In the light of the narrative supra, there shall be a decree in terms of sub-paragraphs (a) to (e) and (g) of plaint prayer paragraph. Suit is decreed with costs, damages and compensatory costs of Rs.10,00,000/- (Rupees Ten Lakhs only) as mentioned supra. Consequently, connected miscellaneous petitions are closed.
02.01.2019
Speaking order/Non Speaking order
Index : Yes /No
Internet : Yes/No
vsm/ssb
http://www.judis.nic.in
24
M.SUNDAR, J.
vsm/ssb
C.S.No.634 of 2018
and O.A.Nos.850 to 853 of 2018
02.01.2019
http://www.judis.nic.in