Delhi High Court - Orders
Dominos I P Holder Llc vs Doms Pizza Aka Dom Pizza King on 23 January, 2019
Author: Manmohan
Bench: Manmohan
#14
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 36/2019
DOMINOS I P HOLDER LLC ..... Plaintiff
Through Mr. Pravin Anand with Mr. Nischal
Anand and Mr. Sanchith Shivakumar,
Advocates
versus
DOMS PIZZA AKA DOM PIZZA KING ..... Defendant
Through None
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
ORDER
% 23.01.2019 I.A No. 1043/2019 Keeping in view the averments in the application, plaintiff is exempted from filing the original/clearer/proper margin and translated copies of documents at this stage.
Needless to say, this order is without prejudice to the rights and contentions of the parties.
Accordingly, present application stand disposed of.
I.A No. 1042/2019Present application has been filed seeking leave to file additional documents.
Keeping in view the averments in the application, the same is allowed and plaintiff is permitted to file additional documents within thirty days.
Accordingly, the application stands disposed of.
CS(COMM) 36/2019 Let the plaint be registered as a suit.
Issue summons in the suit to the defendant by all modes including dasti, returnable for 27th February, 2019 before the Joint Registrar for completion of service and pleadings.
The summons to the defendant shall indicate that a written statement to the plaint be positively filed within four weeks of the receipt of the summons. Liberty is given to the plaintiff to file a replication within two weeks of the receipt of the advance copy of the written statement.
The parties shall file all original documents in support of their respective claims along with their respective pleadings. In case parties are placing reliance on a document which is not in their power and possession, its detail and source shall be mentioned in the list of reliance which shall be also filed with the pleadings.
Admission/denial of documents shall be filed on affidavit by the parties in accordance with the Delhi High Court Rules.
List the matter before Court on 5th April, 2019.
I.A No.1041/2019Issue notice to the defendant by registered post and dasti, returnable for 27th February, 2019 before the Joint Registrar.
It is pertinent to mention that the present suit has been filed for permanent injunction restraining infringement of copyright and trade marks, passing off, dilution of trademark, trade name, rendition of accounts, damages, etc. It is stated in the plaint that the plaintiff company was founded in 1960 in Michigan and is now one of the world‟s leading pizza and fast food chain. It is stated that the plaintiff started its operation in India in the year 1996 with its first outlet in New Delhi. It is stated that the plaintiff carries on its business through Jubilant FoodWorks Limited, which has been granted the master franchise by the plaintiff for the territories of India, Nepal, Bangladesh and Sri Lanka.
It is averred in the plaint that the plaintiff‟s adoption of the mark "Domino‟s" for pizza is arbitrary as it has no significance or meaning in relation to pizza or fast food and is therefore inherently distinctive.
It is stated that the plaintiff is also the registered proprietor of the mark Domino‟s under various classes of the Trade Marks Act, 1999.
It is the case of the plaintiff that the sale of goods under the mark "Domino‟s" for the financial year 2017-2018 was approximately Rs.29,16,80,68,430 /-. Further, the plaintiff has incurred expenditure of Rs.1,32,75,15,075 /- for advertising goods under the mark "Domino‟s".
It is stated in the plaint that as a result of long and continuous use of the Domino‟s trade mark and the distinctive red and blue colour scheme over a long period of time, the said trademark has acquired reputation and goodwill.
Learned counsel for the plaintiff‟s states that in September, 2018, the plaintiff received information regarding the defendant‟s restaurant opening in Vasundhara, Ghaziabad. He states after an online investigation the plaintiff verily believes that the defendant operates at least six outlets in and around Delhi under the name Dom‟s Pizza as well as Dom‟s Pizza king.
Learned counsel for the plaintiff states that the defendant is trying to imitate the plaintiff‟s successful chain of restaurants, even though the plaintiff has not granted any licence to the defendant to carry out the business of running a restaurant under the Domino‟s brand.
Learned counsel for the plaintiff states that the defendant is also using the mark „Pizza Mania‟ which is a registered trade mark of the plaintiff along with identical elements such as font, trade style, menu and colour combination. He states that the defendant also maintains a website using a deceptively similar domain name, www.dompizzaking.com, which contains photographs of the defendant‟s menu that are deceptively similar to the plaintiff‟s menu.
Learned counsel for the plaintiff states that the plaintiff addressed a cease and desist letter dated 26th September, 2018 demanding the defendant to cease and desist from undertaking illegal activities. However, no reply was received by the plaintiff.
Keeping in view the aforesaid, this Court is of the opinion that a prima facie case of infringement and passing off is made out in favour of the plaintiff and balance of convenience is also in their favour. Further, irreparable harm or injury would be caused to the plaintiff if an interim injunction order is not passed.
Consequently, till further orders, the defendant, its proprietors, partners, directors, officers, servants, agents and all others acting for an on their behalf are restrained from advertising, selling, offering for sale, marketing etc any product, packaging, menu cards and advertising ,material, labels, stationery, articles, websites or any other documentation using, depicting, displaying in any manner whatsoever the trademark "Dom‟s Pizza" and "Dom Pizza King"
or any other mark which is identical or deceptively similar to the plaintiff‟s registered trademark in any manner whatsoever.
Let the provision of Order XXXIX Rule 3 CPC be complied within a week.
MANMOHAN, J JANUARY 23, 2019 rn