Delhi High Court
Everstone Capital Advisors Pvt Ltd & Anr vs Akansha Sharma & Ors on 17 July, 2018
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th July, 2018
+ CS(COMM) 1028/2016 & I.A. 4910/2017
EVERSTONE CAPITAL ADVISORS PVT LTD
& ANR ..... Plaintiffs
Through: Mr. Saransh Jain and Mr. Madhavam
Sharma, Advocates. (M-7838244209)
versus
AKANSHA SHARMA & ORS ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The Plaintiffs have filed the present suit seeking a declaration and permanent injunction restraining infringement of the registered trademark EVERSTONE and EVERSTONE CAPITAL, passing off and unfair competition.
2. The case in the Plaint, briefly, is that Plaintiff No.1, Everstone Capital Advisors Pvt. Ltd, is a leading private equity and real estate investment company. It claims to be managing various private equity and real estate funds which are focused in India. It works with a large number of Corporations, entrepreneurs, asset owners and service providers and provides advisory services for investment opportunities in India. It renders investment advisory work in various sectors, including power sector, construction sector, food and beverage sector, financial services, renewable CS(COMM) 1028/2016 Page 1 of 4 energy, agro chemicals, telecom and publishing. Plaintiff no.2 is a Singapore Company part of the EVERSTONE group, which has developed a website „everstonecapital.com‟.
3. Plaintiff No.1 was established in India in 2008, and in 2009 it filed trademark applications for registration of the mark „EVERSTONE'. The said registrations have been granted in Classes 16, 35 and 36.
4. The present suit was filed by the Plaintiffs seeking an injunction against various blogs/written materials claimed to be by Defendant no.1, on the online platforms of Defendant No.2, 3 and 4. In the suit, after repeated efforts only Defendants No.2 and 4 have been served as recorded in the order dated 4th September, 2015. Defendant No.2 appeared on a few occasions but has since stopped appearing and none has appeared for Defendant No.4. The said Defendant No.2 and 4 are proceeded ex-parte.
5. Insofar as Defendant No.1 is concerned, the Plaintiffs do not have any details of the said Defendant whose name and photograph appears at Page No.298 of the documents. The documents placed on record including the website printout shows that different articles appear using the mark "EVERSTONE" and "EVERSTONE CAPITAL". The Plaintiffs submit that none of the impugned publications were made by them or authorized by them and Defendant No.1, with a hidden identity seems to have uploaded these pages and blogs. Defendant Nos.2, 3 and 4, which are the platforms where the blogs were uploaded, have chosen not to appear. Thus, this Court of the opinion that there is no useful purpose in sending the matter for recordal of evidence as none of the defendants have appeared and Defendant no.1 is untraceable.
6. There being no defence filed the averments in the Plaint are CS(COMM) 1028/2016 Page 2 of 4 unrebutted. Under the extant provisions of the CPC, the Plaint is supported by an affidavit and in the absence of any rebuttal or challenge, the Court can take the averments in the Plaint to be correct. Moroever, the documents for eg., registrations of trade marks being public documents, are easily verifiable and the so-called formality of filing affidavit in evidence for marking of exhibits can be dispensed with. A perusal of the plaint and the documents placed on record clearly shows that the Plaintiffs enjoy statutory rights in the mark „EVERSTONE'. It has also acquired reputation and goodwill as being a leading investment advisory company. The mark „EVERSTONE', is a registered trademark of Plaintiff No.1 in India and of Plaintiff no.2 in various jurisdictions of the world, including Singapore, United Kingdom, USA and Hong Kong. The said marks have become distinctive of the Plaintiffs‟ businesses. The Plaintiffs have been active in India and have also spent huge sums on advertising and publicity. In the year ending March 2014, the Plaintiffs‟ turnover in India is almost 70 crores. The Plaintiffs also use the domain name www.everstonecapital.com as their website, along with the domain name www.everstone.in.
7. In the present case, there is clear misuse of the trademark „EVERSTONE'. A perusal of the screenshots which have been placed on record clearly shows that various blogs and written materials using „EVERSTONE' and „EVERSTONE CAPITAL' are being used by the Defendants. The identity of the person in the online articles, which are credited to the name of Akansha Sharma is also untraceable. In some of the articles appearing on the website everstonecapital.worldpress.com, the expression "EVERSTONE CAPITAL - PRIVATE EQUITY FIRM INDIA" is being used. Various articles are being published in the name of CS(COMM) 1028/2016 Page 3 of 4 „EVERSTONE'. In another website www.pinterest.com, „EVERSTONE CAPITAL‟ is being used and it is submitted that none of these websites belong to the Plaintiffs. Even the domain names appear to be held in proxy.
8. The services in which the Plaintiffs are involved are sensitive in nature and involve investment advice etc., There is a clear possibility of misuse of the name that can result in monetary loss to those making investments or seeking investment advice. The marks and name EVERSTONE and EVERSTONE CAPITAL are well known not only abroad but also in India, owing to their presence for almost a decade. The Plaintiffs are the exclusive owners of the mark "EVERSTONE", and these publications infringe the Plaintiffs‟ right inasmuch as articles being authored without authorization by the Plaintiffs would constitute infringement of their trademark. Considering the nature of allegations in the suit and the misuse of the mark and name „EVERSTONE' and „EVERSTONE CAPITAL', the injunction as prayed for deserves to be passed.
9. Accordingly, the suit is decreed qua Defendant No.2 and 4 in terms of paragraphs (b), (d), (e) & (f) of the prayer clause. Insofar as the other Defendants are concerned, if Plaintiffs are able to identify them or find their contact details, they are permitted to file a fresh suit against the said Defendants.
10. The suit is decreed and disposed of accordingly. All the pending applications are disposed of.
PRATHIBA M. SINGH JUDGE JULY 17, 2018 Rekha CS(COMM) 1028/2016 Page 4 of 4