Impresario Entertainment And ... vs China Social Through Its Proprietor on 6 October, 2023

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Delhi High Court - Orders

Impresario Entertainment And ... vs China Social Through Its Proprietor on 6 October, 2023

Bench: Prathiba M. Singh

                                    $~30
                                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    +        CS(COMM) 702/2023 and I.A. 19541-19545/2023
                                         IMPRESARIO ENTERTAINMENT AND HOSPITALITY PVT
                                         LTD                                           ..... Plaintiff
                                                       Through: Ms. Shikha Sachdeva, Ms. Mugdha
                                                                Palsule & Ms. Devika Gupta, Advs.
                                                                (M:7073569007)
                                                       versus
                                         CHINA SOCIAL THROUGH ITS PROPRIETOR ..... Defendant
                                                       Through: None.

                                                CORAM:
                                                JUSTICE PRATHIBA M. SINGH
                                                         ORDER

% 06.10.2023

1. This hearing has been done through hybrid mode. I.A. 19542/2023 (for exemption)

2. This is an application filed by the Plaintiff seeking exemption from filing originals/cleared/certified/translated copies of documents with proper margins, etc. Original documents shall be produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the Commercial Courts Act, 2015 and the DHC (Original Side) Rules, 2018.

3. Exemption is allowed, subject to all just exceptions. Accordingly, the application is disposed of.

I.A. 19544/2023 (for additional documents)

4. This is an application filed by the Plaintiff seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act'). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the CS(COMM) 702/2023 Page 1 of 16 This is a digitally signed order.

5. Application is disposed of.

I.A. 19543/2023 (u/S 12A of the Commercial Courts Act)

6. This is an application filed by the Plaintiff seeking exemption instituting pre-litigation mediation. Considering that the Plaintiff seeks urgent ex-parte relief, and in view of the orders passed in Chandra Kishore Chaurasia v. R A Perfumery Works Private Ltd, 2022/DHC/004454, the application is allowed and disposed of.

I.A. 19545/2023 (exemption from advance service to the Defendant)

7. In view of the fact that the Plaintiff has sought ex parte ad-interim injunction along with the appointment of the Local Commissioner, the exemption from advance service to the Defendant is granted.

8. Accordingly, the application is disposed of. CS(COMM) 702/2023

9. Let the plaint be registered as a suit.

10. Issue summons to the Defendant through all modes upon filing of Process Fee.

11. The summons to the Defendant shall indicate that the written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendant shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.

12. Liberty is given to the Plaintiff to file the replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendant, be filed by the Plaintiff, without which the replication shall not CS(COMM) 702/2023 Page 2 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:30 be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

13. List before the Joint Registrar for marking of exhibits on 17th November, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

14. List before Court on 17th January, 2024. I.A. 19541/2023 (u/O XXXIX Rules 1 & 2 CPC)

15. The present suit has been filed by the Plaintiff-Impresario Entertainment and Hospitality Pvt. Ltd. seeking enforcement and protection of its trademark/service mark 'SOCIAL', used in respect of restaurants, coffee shops and other eating outlets.

16. The Plaintiff is engaged in managing restaurants, coffee shops, cafes, etc., under the trademark 'SOCIAL'. The names used by the Plaintiff for the outlets/restaurants operated include, Smoke House Deli, Salt Water Cafe, Le Kebabiere, The Tasting Room, Prithvi Cafe, Flea Bazar and Social. The Plaintiff is stated to have commenced business in 2001 and won various awards for excelling in its services.

17. It is averred that the Plaintiff conceived of the mark/name 'SOCIAL' in 2011-12, for eating outlets. The first outlet was opened in Bangalore, Karnataka in 2014. As per the Plaintiff, the said name 'SOCIAL' has been used in various forms, logos, artistic works and derivative marks, as set out in paragraph 8 of the plaint. The Plaintiff claims to have more than 45 outlets spread across various states in the country. The detailed list is set out below:

S. NO. OUTLETS CITIES CS(COMM) 702/2023 Page 3 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31

1. Delhi NCR

2. Delhi NCR

3. Delhi NCR

4. Delhi NCR

5. Delhi NCR

6. Delhi NCR

7. Delhi NCR

8. Delhi NCR

9. Delhi NCR

10. Delhi NCR

11. Delhi NCR CS(COMM) 702/2023 Page 4 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31

12. Mumbai

13. Mumbai

14. Mumbai

15. Mumbai

16. Mumbai

17. Mumbai

18. Mumbai

19. Mumbai

20. Mumbai

21. Mumbai CS(COMM) 702/2023 Page 5 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31

22. Mumbai

23. Mumbai

24. Mumbai

25. Mumbai

26. Mumbai Re-branded to

27. Mumbai

28. Mumbai

29. Mumbai

30. Mumbai CS(COMM) 702/2023 Page 6 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31

31. Pune

32. Pune

33. Pune

34. Chandigarh

35. Chandigarh

36. Madhya Pradesh

37. Bengaluru

38. Bengaluru

39. Bengaluru

40. Bengaluru

41. Bengaluru

42. Bengaluru CS(COMM) 702/2023 Page 7 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31

43. Bengaluru

44. Chennai

45. Dehradun

18. The name/mark of the Plaintiff is also registered in various classes such as classes 43,43,41,35,33,32, 30, 25, 21, 16 and 9. The Plaintiff enjoys a word mark registration in Class 43 for the mark 'SOCIAL'. The details of the Plaintiff's registration for the mark 'SOCIAL' are set out in the plaint at paragraph 11.

19. Ms. Shikha Sachdeva, ld. Counsel appearing for the Plaintiff, submits that the concept of the Plaintiff's outlets named 'SOCIAL' is to create a place where people can meet and socialize. Hence, the names are derived based on the names of the cities, areas and colonies, combined with the word 'SOCIAL'.

20. The case of the Plaintiff is that its 'SOCIAL' restaurants/bars are renowned for their distinct beverage serving style since their inception in 2014. Significant investments have been made in developing this unique presentation, which has gained immense popularity and is exclusively associated with the Plaintiff. The Plaintiff claims to have applied for and received registrations for some of these serving styles. Each 'SOCIAL' establishment features a unique interior design theme exclusive to the Plaintiff, with evidence provided in the form of photographs. Additionally, 'SOCIAL' restaurants/bars have a display counter offering crockery and CS(COMM) 702/2023 Page 8 of 16 This is a digitally signed order.

21. The Plaintiff also claims to have a considerable presence on various online platforms including Facebook, Instagram, Twitter and YouTube. The Plaintiff's turnover for the year 2022-23 is stated to be more than Rs. 473 crores, and a substantial sum of approximately Rs.30 crores has been spent on advertising and publicity annually. It also has a website www.socialoffline.in.

22. The Plaintiff has also taken several actions to protect its mark 'SOCIAL' and has been able to secure injunctions. In Impresario Entertainment and Hospitality Pvt. Ltd. v. SOCIAL 75 [CS (Comm) 597/2022, Order dated 31st August 2022], a ld. Single Judge of this Court passed the following order:

"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 ex parte ad-interim injunction, as the impugned trademark is 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' 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 CS(COMM) 702/2023 Page 9 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31 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 the goods of the Defendant as those of the Plaintiff.

32. Defendant, its partners, principals, directors, officers, employees, agents, distributors, suppliers, etc. and all others acting on its behalf, are directed to remove all references of the impugned trademark from third party websites, where the Defendant's goods and/or services are sold, offered for sale, promoted and/or advertised under the impugned trademark 'SOCIAL' and/or any other trademark deceptively similar to the Plaintiff's trademarks".

23. The Plaintiff had also filed infringement actions against use of the following marks:

CS(COMM) 702/2023 Page 10 of 16

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31 CS(COMM) 702/2023 Page 11 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31

24. The grievance in the present suit is that the Defendant Mr. Debaditya Chaudhury is running a cloud kitchen by the name 'CHINA SOCIAL'. The Plaintiff became aware of the same only in August, 2023, when the Plaintiff came across listings on Zomato, Delhi and Zomato, Calcutta. Further, it is averred that the Defendant is promoting its cloud kitchen with the impugned trademark 'CHINA SOCIAL' not only on restaurant search engines but also on the social networking platform, Instagram. The competing marks of the parties are set out below:

Plaintiff's Trademark Defendant's Trademark SOCIAL CHINA SOCIAL

25. Ms. Sachdev, ld. Counsel also submits that the Defendant also operates a cloud kitchen by the name 'CHOWMAN' and the adoption of the name 'CHINA SOCIAL' is thus only to ride piggyback on the Plaintiff's CS(COMM) 702/2023 Page 12 of 16 This is a digitally signed order.

26. The Defendant has also filed a trademark application on 27th December, 2022 on a 'proposed to be use' basis bearing no. '5740291' in Class 43. The same application is set out below Trade Mark Trade Class Date of Date of Applicant Mark Application use No. 5740291 43 27/12/2022 Proposed Debaditya to be Chaudhury used Services: Services For Providing Food And Drink Temporary Accommodation

27. Heard and perused the record. Considering the fact that the Plaintiff is a prior adopter and user of the registered trademark 'SOCIAL' and its variants, the use of the impugned mark by the Defendant amounts to infringement under Section 29 of the Trade Marks Act, 1999. The Defendant's adoption is very recent i.e., December 2022, and it has used the mark 'SOCIAL' for identical services i.e., eating and food preparations which would lead to confusion and deception. It is clear that the adoption of a deceptively similar trademark by the Defendant 'CHINA SOCIAL' is aimed at passing off Defendant's services as that of the Plaintiff. There is every likelihood of the Defendant's cloud kitchen services being perceived as another extension of the Plaintiff's services owing to the nature of the SOCIAL series of marks used by the Plaintiff.

CS(COMM) 702/2023 Page 13 of 16

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31

28. Further, in Laxmikant v. Patel v. Chetanbhai Shah & Ors. (MANU/SC/0763/2001), the Supreme Court categorically observed that in cases where a case of infringement is made out, the Court ought to grant an immediate ex-parte injunction to ensure that the infringing products or services are not permitted to be sold or displayed. The relevant extract of the order is set out below:

"14. [.....Once a case of passing off is made out the practice is generally to grant a prompt ex-parte injunction followed by appointment of local Commissioner, if necessary....]"

17. We are conscious of the law that this Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the Trial Court and substitute its own discretion therefore except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Court under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion [(see Wander Ltd. v. Ant ox India P. Ltd.

MANU/SC/0595/1990 and N.R. Dongre v. Whirlpool Corporation and Anr.: MANU/SC/1223/1996 :

(1996)5SCC714 . However, the present one is a case falling within the well accepted exceptions. Neither the CS(COMM) 702/2023 Page 14 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:31 Trial Court nor the High Court have kept in view and applied their mind to the relevant settled principles of law governing the grant or refusal of interlocutory injunction in trade mark and trade name disputes. A refusal to grant an injunction in spite of the availability of facts, which are prima facie established by overwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff as would not be capable of being undone at a latter stage. The discretion exercised by the Trial Court and the High Court against the plaintiff, is neither reasonable nor judicious. The grant of interlocutory injunction to the plaintiff could not have been refused, therefore, it becomes obligatory on the part of this Court to interfere."

29. Thus, considering the observations of the Supreme Court in the above judgment, and the facts of this case, this Court is of the opinion that the Plaintiff has made out a, prima facie, case for grant of an ex-parte ad- interim injunction. Balance of convenience lies with the Plaintiff, and further, if the ex-parte injunction is not granted, irreparable harm would be caused to the Plaintiff.

30. However, considering the fact that Defendant appears to operate multiple cloud kitchen services under the name 'CHINA SOCIAL', this Court is inclined to grant some time to the Defendant to change the said impugned mark/name or to approach this Court by way of an appropriate application.

31. Accordingly, it is directed that the Defendant-China Social through its proprietor Mr. Debaditya Chaudhury shall stand restrained from using the mark 'CHINA SOCIAL' or any other mark or name for services related to CS(COMM) 702/2023 Page 15 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:32 food, including restaurants, cafes, etc., under the mark 'CHINA SOCIAL' or any other mark which consists of the word 'SOCIAL' or any other deceptively similar mark/name.

32. The said injunction order, however, shall come into operation from the 1st January, 2024.

33. If the Defendant wishes to seek modification of this order, it is free to approach this Court.

34. Compliance of Order XXXIX Rule 3 CPC within a week.

35. List on the dates fixed above i.e., 17th November 2023 before Joint Registrar and 17th January 2024 before Court.

PRATHIBA M. SINGH, J OCTOBER 6, 2023 dj/dn CS(COMM) 702/2023 Page 16 of 16 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/10/2023 at 22:04:32

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Delhi High Court - Orders