Delhi District Court
Also At vs Big Shows Entertainers Private Limited on 25 April, 2022
In the Court of Shri Dinesh Bhatt, District Judge (Commercial
Court)01, Tis Hazari Courts, West District, Delhi
CS (Com.) No.433/2016
CNR No. DLWT010014402016
Big Shows Entertainment Private Limited
Having registered office at:
656, Pocket1, Paschim Puri,
New Delhi110063
Also At:
67C, BG5, Paschim Vihar,
New Delhi110063
........Plaintiff
Versus
1.Big Shows Entertainers Private Limited 92, Madangir, Near Span House, New Delhi110062 Also At:
106, First Floor, Building No.7, D.D.A. Market, Pusup Vihar, New Delhi110062 Also At:
A/92, Madangir, Opposite Baba Hurshukh Das Mandir New Delhi110062
2. Mr. Gautam Kapoor CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.1 of 11 House No.1948, Sector37, Arun Vihar, Noida201303, Uttar Pradesh, India ........Defendants Date of Institution : 04022016 Date of hearing of arguments : 25042022 Date of decision : 25042022 EXPARTE J U D G M E N T This is a suit under section 134 and 135 of the Trade Marks Act for permanent injunction restraining the defendants from using their trade mark/ logo/ name BIG SHOWS and for rendition of accounts / damages.
2. Plaintiff's case is that it is private limited company and had authorized Mr Manmeet Singh for filing the present case. In the year 1995, Mr Manmeet Singh had coined and adopted the mark BIG SHOWS and has been using the same since then and later it was incorporated as a company. Plaintiff had been organizing the events under the name / mark BIG SHOWS for the past more than two decades and had large clientage. Plaintiff had been spending huge amounts on promotion, advertising and marketing and thus the logo BIG SHOWS had become distinct and synonymous with the plaintiff.
CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.2 of 11 Plaintiff was also maintaining two websites with the domain name www.bigshowsindia.com and www.bigshows.in since 2004 and 2008 respectively.
3. The BIG SHOWS logo was registered vide application dated 22 012007 with claimed user since 31032004. The BIG SHOWS word mark was registered vide application dated 13032015 with claimed user of 30071995 which was pending at the time of filing of the suit but is now claimed to have been registered. Plaintiff was having sales worth more than one crore per year for financial years from 2007 till 2014.
4. Defendant was also a company with the name BIG SHOW Entertainment Pvt Ltd and was also in the same business but had illegally used the brand / trade mark of the plaintiff and in December, 2015 plaintiff came to know about defendant's website which was also using plaintiff's trade mark BIG SHOW. Defendant was thus using identical / deceptively similar trade mark and therefore infringing their registered trademark. The defendant's adoption of the plaintiff's trade mark was so similar that no doubt was left with anybody and whosoever would sees the word would get confused about the identity.
CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.3 of 11
5. Defendant filed WS with preliminary objections that the suit was not maintainable before regular Civil Court as the case was covered under the Commercial Court's Act. The suit was not maintainable as the BIG SHOWS was not the registered trade mark of the plaintiff. The suit was bad for misjoinder of parties. Plaintiff had failed to show any occasion of suffering any alleged loss due to the use of the name BIG SHOW Entertainers by the defendant. The suit was barred by limitation. The defendants were also filing objections before the Registrar in regard to the Plaintiff's registration of the trade mark BIG SHOWS. The averments of the plaint were vague. On merits, defendant no. 1 stated that it was a private limited company and Sh Gautam Kapoor was running another company with the name M/s BIG SHOW Entertainers since 1994. They were providing stage light and sound systems to large number of entities. They were serving the entertainment world for the last more than 22 years. They were providing highly skilled technical services and had prestigious national and international shows to their credit. Their turnover was also more than Rs. 15 lacs per year since 2005. They denied that plaintiff was using the logo BIG SHOWS or it was their registered trade mark. They have denied any violation. Plaintiff filed replication denying the preliminary objections and reiterating the contents of the Plaint.
6. Vide order dated 24112016 interim injunction against the CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.4 of 11 defendant was passed which was stated to have been challenged in the Hon'ble High Court but plaintiff states that defendant stopped appearing in the said case and the said application as per their information has been disposed off without any effective order.
Vide order dated 06052017, following issues were framed:
1. Whether plaintiff is entitled to decree of permanent injunction as prayed? OPP
2. Whether plaintiff is entitled to delivery of all impugned material bearing impugned trade mark/ logo/ name, "Big Shows" including poster pamphlets, publicity material label invoices, brochures, stationery to the authorized representative of plaintiff? OPP
3. Whether plaintiff is entitled for rendition of account of profits illegally earned by defendants and in alternative a decree of damages at least Rs.18 lacs as prayed? OPP
4. Whether present suit is barred by Section 2 (XVII) of Commercial Courts, Commercial Division and Commercial appellate Division of High court Act, 2015 (OPD)
5. Whether present suit is bad for misjoinder of necessary parties? OPD
6. Whether present suit is barred by limitation? OPD CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.5 of 11
7. Whether defendant is prior user and registered user of impunged trade mark "Big Shows" ? OPD
8. Relief.
7. Plaintiff has examined PW1 as its sole witness. Defendant did not crossexamine the witness and were proceeded Exparte vide order dated 29092018. Plaintiff thereafter closed its evidence. Defendant did not lead any evidence on its behalf.
ISSUE NO. 18. PW1 reiterated plaintiff's case and relied on documents Ex.PW 1/1 to Ex.PW1/10 and Mark A and B.
9. Plaintiff's case is that its name is BIG SHOWS Entertainers Pvt. Ltd. and the registered trade mark holder of the mark/logo 'BIG SHOW'. The certificate of incorporation being Ex. PW1/2. The print outs of the yellow pages relating to the BIG SHOWS Entertainers Pvt Ltd. is EX. PW1/5. One invitation card relating to the fashion show organized by the Plaintiff is Ex. PW1/6. The list of their clients is Ex. PW1/7. The print outs relating to services is Ex. PW1/9. Registration certificate of trade mark of the mark/logo BIG SHOW is Ex. PW1/10. As per the CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.6 of 11 same, the same was registered under class 41 as a device mark, the date of application being 22.01.2007 and claimed user since 31.03.2004. Plaintiff also placed on record one application of the registration of the BIG SHOW as a word mark vide their application dated 13.03.2015 which was claimed to be pending at the time of filing of the suit but now claimed to have been registered in the name of Shri Manmeet Singh who is the Director of the Plaintiff company and it is claimed that subsequently company was formed and the trade mark was transferred to the Plaintiff vide assignment deed in this regard which is also filed on record at pages 118121. Plaintiff has also filed several printouts showing their involvement in the entertainment world with various organizations. Defendant has claimed that Plaintiff was neither holder of a registered trade mark nor user of the same but the plaintiff has placed on record the registration certificate relating to the registration of the trade mark of BIG SHOW as a logo and also documents to show their involvement in various programmes as Big Show users. Defendant's second objection was that they were prior user and using the same since 1994 but have neither cross examined Plaintiff's witnesses nor have led any evidence on their behalf to substantiate their claims.
10. Plaintiff's version in regard to the registration of the trade mark CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.7 of 11 and using the trade mark/logo since the date of application of registration is unrebutted and corroborated from the documents on record. In regard to violation by the defendant, defendant admitted that they were using the same name BIG SHOW as their name for programmes. Further injunction order dated 24.11.2016 was passed against the defendant and thereafter Plaintiff filed an application under order XXXIX Rule 2A by attaching documents to show that after the date of the order defendant had been participating under the same name in the bid before the National School of Drama (page no. 2528 of the application) and also filed other documents wherein the list of exhibitors mentioned the name of defendant who is shown to be using Plaintiff's log BIG SHOW at page no. 2932 of the said application. But plaintiff did not prove the same. Plaintiff also did not lead any evidence to substantiate the claim under Order XXXIX Rule 2A CPC.
11. However in regard plaintiff's claim regarding registration and its use, defendant has neither crossexamined PW1 nor lead any evidence on their behalf, Plaintiff's version is unrebutted. It is thus substantiated on record that plaintiff is holder of registration for trade mark BIG SHOWS and defendant has no right/ claim to use the same and also cannot use the same as their domain name. Accordingly, issue no. 1 is decided in favor of the Plaintiff and against the Defendant.
CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.8 of 11 ISSUE NO. 2
12. Plaintiff did not lead any specific evidence to show defendant was possessing any impugned material. However, in view of findings on issue no. 1 and defendants admission in their written statement that they were using the name BIG SHOW for their programme, it can be presumed that there would be some material relating to the work etc. as such, issue no. 2 is also decided in favor of the plaintiff and plaintiff is entitled to ask from defendant to delivery of all or any impugned material bearing plaintiff's impugned trade mark/logo/name BIG SHOWS including posters/pamphlets/publicity material/labels, invoices, brochures, stationery etc. to the Plaintiff.
ISSUE NO. 4,5,6 & 713. Defendant has not lead any evidence on these issues. Accordingly, these issues are decided against the defendant as being not proved.
ISSUE NO. 314. Plaintiff has claimed damages to the extent of Rupees Eighteen Lakhs and orally prayed that penal damages may also be awarded.
CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.9 of 11 Plaintiff has however not lead any evidence to substantiate any amount on this account. Ld. Counsel for the plaintiff has merely argued that plaintiff's turnover was more than Rupees One Crore per year and therefore 10 per cent may be presumed as a probable loss caused by the defendants act. Defendants had also placed on record their WS where they have also claimed that they were also earning huge amount i.e. more than 15 lacs on yearly basis. There is, however, no evidence on record to show any actual loss or any fact by which any probable damage can be assessed or calculated. Plaintiff has even failed to show any single incidence wherein the defendant has secured any contract or event holding over their claim. Plaintiff has not shown any fact whereby defendant no.2 can be held personally liable for damages. In view of this, Plaintiff can only be allowed nominal damages/Penal damages in the present case which keeping in mind the turnover of both parties are assessed to the extent of Rupees Two lakhs in favour of the plaintiff and against defendant no.1.
ISSUE NO. RELIEF:
15. The Suit of the Plaintiff is decreed to the extent that a decree of permanent prohibitory injunction is passed in favour of the plaintiff and against the defendants from using the plaintiff's trade mark/logo/name CS (COMM.) No.433/16 Big Shows Entertainment P. Ltd. Vs. Big Show Entertainers Pvt. Ltd. Page No.10 of 11 BIG SHOWS in any manner whatsoever including the name BIG SHOWS ENTERTAINERS and the domain name www.bigshowsentertainers.in and/or any other similar trade mark, logo, trade name corporate name domain name in respect of any goods/services particularly event management services. Further, defendant to deliver all or any of the impugned material bearing the impugned trade mark BIG SHOW in any of their publicity material/brochures etc. Further decree of damages to the extent of Rs.2 lacs alongwith interest @ 6% P.A. from the date of decree till realization with cost is also passed in favour of the plaintiff and against the defendant no.1.
Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in open (Dinesh Bhatt)
Court on 25.04.2022 District Judge (Commercial Court)01
West, Tis Hazari Courts, Delhi
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