El Baik Food Systems Co Sa vs Arsalan Wahid Gilkar & Anr on 5 July, 2022

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Delhi High Court - Orders

El Baik Food Systems Co Sa vs Arsalan Wahid Gilkar & Anr on 5 July, 2022

1. The present suit has been filed by the Plaintiff - EL Baik Food Systems Co. S.A., a company based in Luxembourg, against Defendant No.1 - Arsalan Wahid Gilkar, trading as Elbaik International Food Systems Co., in respect of the following trademarks (hereinafter described as 'ALBAIK' trademarks):

                          i)          'ALBAIK'
                          ii)         'ELBAIK'


                          iii)                      (ALBAIK device)

                          iv)                      (ELBAIK device)




                          CS (COMM) 283/2021                                              Page 1 of 10
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:06.07.2022
11:05:08
                           v) '                      (ALBAIK 'Chick Logo' device')



                          vi)                   (ALBAIK 'Hat in hand' device)



                          vii) '                   (B device)

2. The grievance of the Plaintiff in the present suit was that the Defendants were using marks which are identical and deceptively similar to the Plaintiff's marks 'ALBAIK'/'ELBAIK', in respect of restaurants as also as part of various domain names for their services. It is the case of the Plaintiff that the Defendants were also giving out franchisees and charging royalties.

3. Vide order dated 4th June, 2021, after considering the matter at the prima facie stage, an ex parte ad interim injunction was granted, in the following terms:

"26. Accordingly, till the next date of hearing Defendant Nos. 1 and 2, their principal officers, proprietor/partners, servants, agents, their affiliates, subsidiaries, distributors, and all others acting for and on their behalf are restrained from, in the course of trade, using the mark 'ALBAIK', 'ELBAIK', Chick logo/device etc., and/or any other mark/name/device/logo which is identical of deceptively similar to the 'ALBAIK trademarks' of the Plaintiff, including as part of domain, e-mail ID, business papers or in any manner whatsoever, and from offering, soliciting, circulating any material, engaging etc. with CS (COMM) 283/2021 Page 2 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08 the members of public for issuing any 'ALBAIK' franchises and from reproducing and/or putting to use in any manner the impugned mark/artistic work or any other artistic work/device/logo comprising of the Plaintiff's artistic works that may amount to infringement of Copyright."

4. Subsequent to the above order being passed, a further interim injunction was sought by the Plaintiff in view of the continued infringing activities of the Defendants. It was brought to the notice of the Court that the Defendants had registered new domain names and had also opened a restaurant in Mumbai, under the name/mark 'ALBAIK'. Considering the said facts, a Local Commissioner was appointed in I.A. 8730/2021. Further, in stay application being I.A. 8779/2021, the Defendant's domain names being www.ilovealbaik.com and www.albaikintemational.com were also injuncted by the Court, and accordingly, the domain name Registrar - GoDaddy.com, LLC was directed to suspend the said domain names. The operative portion of the said order dated 22nd July, 2021 is extracted below:

"7. Mr. Saif Khan, learned counsel for the Plaintiff states that after the service of the paper book along with a copy of the injunction order, the Defendants had contacted the Plaintiffs counsel vide email dated 16th June, 2021 asking for copies of documents, which were accordingly provided. He further states that despite the aforenoted injunction order, the Defendants are continuing to use the impugned marks as a part of domain, email ID, trade name, business papers etc. They have recently inaugurated a restaurant in Mumbai at the address-

CS (COMM) 283/2021 Page 3 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08

Shop No. 13, Hotel Metro Palace, Opposite Bata Showroom, Ramdas Nayak Road (Hill Road), Bandra West, Mumbai-400050 (in short 'premises in question'). xxx

11.Accordingly, Ms. Vidhi Gupta, Advocate (Contact No. +91 9711667202) is appointed as the Local Commissioner and is directed to visit the premises noted hereinabove. The Local Commissioner shall decide the date of visit to the premises, in consultation with the Plaintiff. The Local Commissioner shall recover the billboards, advertisements, signage and/or other hoardings using any marks that are deceptively similar to the Plaintiffs 'ALBAIK' trademarks found therein. The Local Commissioner shall also make an inventory and take into custody all the goods including boxes, tables, tags, literature, packaging material, stationery etc. bearing/ comprising the identical and/or deceptively similar marks to the Plaintiffs 'ALBAIK' trademarks including 'ALBAIK', 'ELBAIK' Chick logo/device etc. After making an inventory of the infringing material, the same shall be handed over to the owner/ manager/ person in-charge/ of the premises in question on superdari upon them fumishing an undertaking that they will produce the infringing material before the Court as and when further directions are issued in this regard. The Local Commissioner shall also be permitted to make copies of the books of accounts including ledgers, cash books, purchases and sales records etc. if found at the premises in question. The Local Commissioner shall also be entitled to videograph and take photographs of the premises in question during the execution of the commission.

xxx

19. Mr. Khan counters the statement by referring to the documents noted above. The Court has already passed an injunction in favour of the Plaintiff and subsequent thereto the Plaintiff has gained knowledge of the aforenoted domain names, which are infringing the CS (COMM) 283/2021 Page 4 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08 Plaintiff's trademarks. In view of the above, the Plaintiff has established a prima facie case in its favour. The balance of convenience also lies in favour of the Plaintiff and an irreparable loss would be caused to the Plaintiff in case an injunction is not granted. Therefore, it is directed that till the next date of hearing, the domain name registrar i.e., GoDaddy.com, LLC shall suspend the impugned domain names www.ilovealbaik.com and www.albaikintemational.com. A copy of the order shall be served through e-mail- [email protected]. Further, the registrar i.e., GoDaddy.com, LLC is directed to provide the information maintained in the WHOIS database with respect to the owner of the aforesaid domain names within a period of four weeks from the date of the receipt of the order."

5. Thereafter, the report of the Local Commissioner was received and the same demonstrates that the Defendant's restaurant at Mumbai, situated at Shop No. 13, Hotel Metro Palace, Opposite Bata Showroom, Ramdas Nayak Road (Hill Road), at the Bandra West, Mumbai - 400050, was being run under a license issued to 'ABI Food Systems Company' and one Ms. Seeba Tuif was shown to be the proprietor of the same.

6. The Plaintiff has now filed a fresh stay application being I.A. 9559/2022, as also, an application under Section 340 of the CrPC being CRL.M.A. 11646/2022. The submission on behalf of the Plaintiff is that Ms. Seeba Tuif was a Director in Defendant No.2 - Elbaik International Food Systems Private Limited, in the present suit. Further, she is also now a promoter in a new company by the name of 'KSA Elbaik International Food Systems Private Limited' (hereinafter as 'KSA Elbaik'), having its address at A-906, Shelton Sapphire, Plot No-18/19, Sector-15, CBD Belapur Thane Maharashtra-400614, which is the same as the Defendant No.2's address as CS (COMM) 283/2021 Page 5 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08 reflected in the memo of parties.

7. Mr. Khan, ld. Counsel for the Plaintiff also submits that the GST registration of the said new company KSA Elbaik is the same as the one reflected in favour of Ms. Tuif, in the FSSAI licence attached with the report of the Local Commissioner. He, thus, submits that the new company KSA Elbaik is nothing but a new avatar of the Defendant No.2 itself, though, it may have new promoters i.e, Ms. Seeba Tuif, Mr. Aatish Balasaheb Hogale and Mr. Nivesh Balasaheb Hogale, as reflected in the Company Master Data of KSA Elbaik which has been placed on record.

8. Ld. Counsel for the Defendant, initially, submitted that the main counsel is not available. Accordingly, the matter was passed over. However, even after the passover, ld. Counsel submits that the main counsel is not available and seeks time to file a reply.

9. This Court has perused the record. A perusal of the same clearly shows that the Defendants are playing hide and seek with the Court, and are trying to hoodwink the Court. There are two injunction orders which restrain the Defendants from using the marks 'ALBAIK', 'ELBAIK' or any other variants and logos of the same. The hat device is clearly reflected in the photographs placed on record by the Local Commissioner along with her report. Further, the Defendants are alleged to be incorporating new entities with the same address using the GST registration details which are already being used by Ms. Seeba Tuif. In the opinion of this Court, the Defendant No.1, Defendant No.2, as also, Ms. Seeba Tuif and the other promoters of the company KSA Elbaik clearly appear to be connected.

10. The new domain names which have been launched by the Defendants are www.albaikers.com and www.bandraalbaikinternational.com. These two CS (COMM) 283/2021 Page 6 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08 domain names consist of the mark 'ALBAIK'. Similar domain names have already been restrained by the Court. Accordingly, the said two domain names shall also be suspended by GoDaddy.com, LLC within three days. Go Daddy LLC shall also communicate the 'Whois' details and the Basic Subscriber Information (BSI) of the domain name registrants to the Plaintiff, within one week.

11. It has also been pointed out that when the Local Commissioner had visited the Defendant's restaurant in Bandra, the premises were shown to be under maintenance and renovation. However, the hat device registered by the Plaintiff was visible in the photographs placed on record by the Local Commissioner, along with her report. Now, the Defendant is stated to have recommenced the restaurant along with the use of the mark/name 'KSA Elbaik' prominently, as is evident from the said photographs placed on record. The said images are set out below:

CS (COMM) 283/2021 Page 7 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08 CS (COMM) 283/2021 Page 8 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08

Clearly, the use of the Plaintiff's mark by the Defendants is in the teeth of the order passed by this Court.

12. Accordingly, Ms. Vidhi Gupta, the Local Commissioner shall visit the premises of the Defendants having its address at Shop No. 13, Hotel Metro Palace, Opposite Bata Showroom, Ramdas Nayak Road (Hill Road), at the Bandra West, Mumbai - 400050, within the next five days, so as to ensure that the restaurant's billboards, advertisements, signage and hoardings, menu cards, bill books, stationery etc., as also any other material bearing references to the Plaintiff's marks, including the marks ALBAIK, ELBAIK, KSA Elbaik are immediately removed from the said restaurant. For the said purposes, the SHO of the concerned area shall render complete cooperation to the Local Commissioner.

CS (COMM) 283/2021 Page 9 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08

13. The fee of the Local Commissioner is fixed at Rs.1,00,000/- and the same shall be borne by the Defendants. However, the expenses for travel and lodging of the Local Commissioner, as also, other miscellaneous out-of- pocket expenses shall be borne by the Plaintiff.

14. The Local Commissioner shall be accompanied by the ld. Counsel for the Plaintiff and one representative of the Plaintiff.

15. In order to ensure that the continued contempt of the orders of this Court is not committed, Defendant No.1 - Mr. Arsalan Wahid Gilkar, Ms. Seeba Tuif, as also, the other two promoters being Mr. Aatish Balasaheb Hogale and Mr. Nivesh Balasaheb Hogale shall remain present in Court on the next date of hearing.

16. List on 29th July, 2022 before the Court. The date before the Joint Registrar stands cancelled. Ld. Counsel for the Plaintiff shall take steps to file an amended memo of parties including the name of the new company M/s. KSA Albaik International Private Limited as a Defendant. Let the needful be done within one week.

17. Copy of today's order shall also be served upon the Defendants at their premises by the Local Commissioner.

18. The digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigant.

19. Dasti.

PRATHIBA M. SINGH, J.

JULY 5, 2022 dj/ad CS (COMM) 283/2021 Page 10 of 10 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:06.07.2022 11:05:08

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Delhi High Court - Orders