Delhi High Court - Orders
Impresario Entertainment & ... vs Social Hub Through Its Proprietor Mr. ... on 10 November, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 773/2022
IMPRESARIO ENTERTAINMENT
& HOSPITALITY PVT. LTD. ..... Plaintiff
Through: Ms. Shikha Sachdeva,
Ms. Mugdha Palsule and Ms. Shreya Das,
Advocates.
versus
SOCIAL HUB THROUGH ITS PROPRIETOR
MR. LAXMAN SINGH JHALA ..... Defendant
Through: None.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 10.11.2022
I.A. 18174/2022 (Exemption)
1. Subject to the Plaintiff filing originals, certified, translated and fair types copies of the documents with proper margins, which it may seek to place reliance on, within four weeks from today, exemption is granted.
2. Application is allowed and disposed of.
I.A. 18175/2022 (Section 12A of the Commercial Courts Act, 2015 seeking exemption from pre-institution mediation)
3. Present application has been preferred on behalf of the Plaintiff seeking exemption from instituting pre-litigation mediation, in accordance with Section 12A of the Commercial Courts Act, 2015.
4. For the reasons stated in the application, this Court is of the opinion that Plaintiff is entitled to consideration of the application seeking urgent relief in the present case and is, thus exempted from instituting pre-litigation mediation.
5. Application is allowed and disposed of.
Signature Not Verified Digitally Signed By:KAMAL KUMAR CS(COMM) 773/2022 Page 1 of 7 Signing Date:16.11.2022 17:27:10I.A. 18176/2022 (Exemption from service to Defendant)
6. Since there is an urgency in the matter and the same is being heard today, Plaintiff is exempted from serving advance notice on Defendant.
7. For the reasons stated in the application, the same is allowed and disposed of.
I.A. 18177/2022 (Exemption from filing Court fees)
8. For the reasons stated in the application, Plaintiff is permitted to file requisite Court Fees within a period of one week from today.
9. Application is allowed and disposed of.
CS(COMM) 773/2022
10. Let plaint be registered as a suit.
11. Upon filing of process fee, issue summons to the Defendant, through all permissible modes, returnable on 09.01.2023 before the learned Joint Registrar.
12. Summons shall state that the written statement shall be filed by the Defendant within 30 days from the receipt of summons. Along with the written statement, Defendant shall also file an affidavit of admission/denial of the documents filed by the Plaintiff.
13. Replication be filed by the Plaintiff within 15 days of the receipt of the written statement. Along with the replication, an affidavit of admission/denial of documents filed by the Defendant, shall be filed by the Plaintiff.
14. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines. I.A. 18173/2022 (under Order XXXIX Rules 1 and 2 CPC, by Plaintiff)
15. Present application has been preferred by the Plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 for grant of an ex-parte ad-interim injunction.
Signature Not Verified Digitally Signed By:KAMAL KUMAR CS(COMM) 773/2022 Page 2 of 7 Signing Date:16.11.2022 17:27:1016. Issue notice to the Defendant through all prescribed modes, returnable on 06.03.2023, before Court.
17. It is averred that Plaintiff Company is a company incorporated and existing under the Companies Act, 1956 and is engaged in providing restaurant services, including but not limited to operating and managing restaurants and coffee shops and providing expertise relating to provision of food and drinks. It is the case of the Plaintiff that it is running various well-known restaurants and coffee shops including Smoke House Deli, Salt Water Cafe, Le Kebabiere, The Tasting Room, Prithvi Cafe, Flea Bazar and Social.
18. It is further averred that Plaintiff commenced business in the year 2001 and since then has opened various restaurants under different names including 'SOCIAL', Plaintiff is recognised as a provider of high-quality services and is a well-known name in the hospitality industry.
19. It is further averred that in India, Plaintiff is the registered proprietor of the trademark 'SOCIAL' and its variants in numerous classes and has over a hundred registrations, the details whereof are mentioned in para 11 of the plaint.
20. It is further averred that in the year 2011-2012, Plaintiff conceived unique concept of giving to its customers an environment of work space combined with coffee. The trademark 'SOCIAL' was adopted in respect of such cafes. The first 'SOCIAL' restaurant/bar of the Plaintiff was opened in the year 2014 in Bengaluru. Plaintiff's 'SOCIAL' restaurants/bars are a collaborative workspace, a hub for artists and innovators. Even the interiors of the 'SOCIAL' restaurants/bars of the Plaintiff have been designed to give a very rugged and bare feel to its visitors with brick walls and bare bulbs hanging down from the ceiling, along with simple wooden and leather Signature Not Verifiedfurniture. Each 'SOCIAL' restaurant/ bar of the Plaintiff has a distinct Digitally Signed By:KAMAL KUMAR CS(COMM) 773/2022 Page 3 of 7 Signing Date:16.11.2022 17:27:10 theme and the interiors are designed around that theme. The theme itself has become a source identifier for the Plaintiff.
21. It is further averred that Plaintiff's trademark 'SOCIAL' is written in a stylized manner in a stencil font and since the business model of the Plaintiff was to open multiple 'SOCIAL' restaurants/bars in one city, it coined the unique concept of prefixing the trademark 'SOCIAL' with the particular area of the city in which the restaurant/bar would be located.
22. It is the case of the Plaintiff that it is also operating a website www.socialoffline.in and the website is dedicated only to the 'SOCIAL' restaurants/bars of the Plaintiff, which is accessible throughout the world. The website also provides the details of all the 'SOCIAL' outlets of the Plaintiff. Plaintiff also advertises all its restaurants, including 'SOCIAL' restaurants/bars on its website being www.impresario.in which is accessible from all over the world. Plaintiff's 'SOCIAL' restaurants/bars have become very popular among the general public and have also received various national awards for excellence in the hospitality industry, as brought forth in para 10 of the plaint.
23. It is stated that Plaintiff extensively advertises its trademarks including the trademark 'SOCIAL' and its variants and due to such extensive advertising and excellence in service, the turnover of the Plaintiff has been steadily increasing. Promotional expenses for the year 2020-21 were Rs.3,25,07,590/- and turnover of the Plaintiff for the year 2020-21 was Rs.1,33,85,81,233/- for all the brands and was Rs.91,55,30,142/-, with respect to SOCIAL Brand.
24. It is averred that Plaintiff's 'SOCIAL' has also got an extensive social media presence. Plaintiff is very active on social networking sites such as Instagram, Facebook, Twitter and You Tube. 'SOCIAL' Signature Not Verifiedalso has a large number of followers on these websites, which further Digitally Signed By:KAMAL KUMAR CS(COMM) 773/2022 Page 4 of 7 Signing Date:16.11.2022 17:27:10 establishes its fame and reputation among the general public.
25. It is stated that in the past, this Court has granted interim injunctions in favour of the Plaintiff, recognising the need to protect its proprietary rights and details of several orders has been furnished in the plaint.
26. It is averred that on a routine internet search Plaintiff was shocked when it came to its attention in September, 2022 that Defendant is operating a restaurant with the impugned trademark SOCIAL HUB in Udaipur. Defendant has intentionally used 'SOCIAL' in its trademark suffixed with an inconsequent word HUB and the prefix will clearly indicate to the public that the Plaintiff has opened another SOCIAL outlet in Udaipur since Plaintiff has a pan- India presence with numerous social restaurants. A comparative of the rival marks as brought in para 24 of the plaint is as follows:
Plaintiff's trademark Defendant's trademark
SOCIAL SOCIAL HUB
Similarity:
l. The trade mark 'SOCIAL' is copied in its entirety by the Defendant;
2. The trade mark 'SOCIAL' is being suffixed with a hashtag on their Facebook page which is identical to the Plaintiff's presentation of the 'SOCIAL' image by the Plaintiff on its social media accounts;
3. The manner of suffixing the trade mark 'SOCIAL' with another word, in this case being 'HUB' is identical to the Plaintiff's concept, the only difference being that the Plaintiff prefixes the trade mark 'SOCIAL' with the name of the area in which the restaurant/bar is located;
4. The services provided by the Plaintiff and Defendant are identical and have the same target audience.
27. It is averred that Defendant is also operating a website being Signature Not Verifiedhttps://socialhubudaipur.com/ and the domain name registered by the Digitally Signed By:KAMAL KUMAR CS(COMM) 773/2022 Page 5 of 7 Signing Date:16.11.2022 17:27:10 Defendant in July, 2021 infringes the Plaintiff's trademark SOCIAL entirely. Visit to Defendant's website discloses that Defendant is using the tagline 'Let's Get Social' which is identical/deceptively similar to Plaintiff's tagline 'GET SOCIAL' to promote its restaurants. Defendant is also promoting the offending trademark on popular social networking websites such as Facebook and Instagram and is also listed on restaurant search engines such as Zomato and e-commerce website Justdial.
28. It is contended by learned counsel for the Plaintiff that Defendant has not only infringed the trademark SOCIAL to associate itself with Plaintiff's iconic SOCIAL chain but has also copied the manner in which Plaintiff promotes its restaurants. Looking at the deceptively similarity of the rival marks and the similar services offered by the Defendant under the impugned mark in the hospitality sector, likelihood of confusion amongst the public and members of the trade is inevitable. Defendant has thus infringed the registered trademarks of the Plaintiff for which it has statutory proprietary rights under Section 28 of the Trade Marks Act, 1999 (hereinafter referred to as the 'Act').
29. It is further contended that Defendant has no plausible explanation to adopt a mark which is deceptively similar to the well known and reputed trademark of the Plaintiff and the action is aimed at misrepresenting to the general public that the source of these services is the Plaintiff. Continuous use by the Defendant of the impugned trademark is leading to dilution and tarnishment of Plaintiff's trademarks apart from violation of common law rights as the impugned action amounts to passing off.
30. Having heard learned counsel for the Plaintiff, this Court is of the view that Plaintiff has made out a prima facie case for grant of Signature Not Verifiedex parte ad-interim injunction, as the impugned trademark is Digitally Signed By:KAMAL KUMAR CS(COMM) 773/2022 Page 6 of 7 Signing Date:16.11.2022 17:27:10 deceptively similar to the registered trademark of the Plaintiff. Balance of convenience lies in favour of the Plaintiff and it is likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.
31. Accordingly, till the next date of hearing, Defendant, its partners, principals, directors, officers, employees, agents, distributors, suppliers, etc. and all others acting on its behalf, are restrained from selling, marketing, advertising and/or offering its services and/or in any other manner using and/or allowing or permitting third parties to market, advertise and/or use the trademark 'SOCIAL HUB'and/or any other trademark or name identical and/or deceptively similar to Plaintiff's trademark 'SOCIAL' and its variants either as, a trademark or part of a trademark, a trade name or corporate name or as a part of a domain name, or in any other manner whatsoever, so as to infringe the registered trademarks of the Plaintiff and/or any part thereof or amounting to passing off.
32. Defendant, its directors, agents, representative and assigns are directed to remove all references of the impugned trademark from third party websites where Defendant's goods and/or services are sold, offered for sale, promoted and/or advertised under the impugned trademark 'SOCIAL HUB' and/or any other trademark deceptively similar to Plaintiff's trademarks.
33. Plaintiff shall comply with the provisions of Order XXXIX Rule 3 CPC within a period of ten days from today.
JYOTI SINGH, J NOVEMBER 10, 2022/rk Signature Not Verified Digitally Signed By:KAMAL KUMAR CS(COMM) 773/2022 Page 7 of 7 Signing Date:16.11.2022 17:27:10