Delhi District Court
Goal Educational Services Pvt. Ltd. vs . Goal Institute on 18 August, 2018
Digitally
signed by
ANIL
ANIL ANTIL
ANTIL Date:
2018.08.18
16:38:54
+0530
IN THE COURT OF ANIL ANTIL,
ADDITIONAL DISTRICT JUDGE 05 SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI.
TM No. 02/18
Goal Educational Services Pvt. Ltd. Vs. Goal Institute
1.Goal Educational Services Pvt. Ltd.
B58, Goal Building, Budha Colony
Patna1
Also at
Shop no. 2, B4, Upper Ground Floor
Kalkaji, New Delhi110019 ..........Plaintiffs
Versus
1. Goal Institute
Hans Complex,
Block Road Jhumari Talaiya,
Koderma, Jharkhand825409. ...........Defendant Date of Institution of suit : 05.01.2018 Date reserved for orders: 18.08.2018 Date for pronouncement of Judgment : 18.08.2018 EXPARTE JUDGMENT TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 1 of 9
1. The present suit u/s 134 & 135 of the Trade Marks Act, 1999 for the relief of permanent injunction to restrain infringement, passing off, damages and /or rendition of accounts etc. has been filed by the plaintiff against the defendant.
2. Plaintiff's version as per averments in the plaint : 2.1 That brief facts of the case are that the plaintiff, is a company incorporated under the provisions of Indian companies Act, 1956. The plaintiff is engaged in the business of education for providing coaching for Medical/Engeering entrance examinations, computer training, education and institution of spoken English, hardware and software training, public school collage, sporting and cultural activities, technical training, test being included in class41, and allied and cognate business and services under the name and style of GOAL Educational Services Pvt. Ltd. That in the year 1997, Sh. Bipin Kumar honestly and bonafidely adopted the trademark/logo "GOAL" as a trademark as well as an essential parts of its trade name GOAL PRACTICE CENTRE and has been using it there since till date for his business which is now being conducted by the plaintiff company. 2.2 That the plaintiff is the owner and proprietor of the said trademark/ Logo and trade name GOAL/ GOAL Logo and GOAL Practice Centre. Ever since its bonafide adoption and use in the year 1997. Further, MR. Bipin Kumar incorporated GOAL Educational Services Pvt. Ltd., on 29.11.2010, for his business in more organized and systematic manner. The predecessor of the plaintiff and the plaintiff have been continuously, commercially, openly, uninterruptedly and without any interference from any corner, have been using the said trademark/logo and trade name GOAL and GOAL as proprietor thereof in relation to their business and services and has built up a valuable trade, goodwill and reputation thereunder.
TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 2 of 9 That the advent of ecommerce, the internet and trade thereunder, the plaintiff adopted the Domain name www.goalinstitute.org for promoting, advertising and popularizing its said business & services under the said/mark/ logo/ trade name, the plaintiff maintains a formidable presence on the internet which is accessible across the country. The website has hundreds of thousands of visits from people looking for information on the plaintiff's innumerable and wide spectrum of business and services.
2.3 That the members of the trade. Industry, consumers and general public at large, more particular the students aspiring for success in IIT/Medical Competitive examinations are well aware of the plaintiff, the plaintiff's said trademark/logo and trade name and the plaintiff's said business and services thereunder. The plaintiff's said trademark/logo and trade name is a well known trademark within the meaning of Section 2 (1) (zg) of the Act.
2.4 As per averments made in the plaint, defendants are engaged in the business of providing education training and coaching classes to the students and aspirants of the competitive examination or SSC,Banking etc. Defendants have dishonestly and malafide adopted and started using the trademark/logo and trade name GOAL COACHING CENTRE as their trademark/logo and trade name in relation to their impuged business and services. The impugned trademark/ logo and trade name GOAL COACHING CENTRE adopted and being used by the defendant is identical with and deceptively similar to the plaintiff's said trademark/logo and trade name in each and every manner including visually, structurally, phonetically and conceptually was well as in its essential features. 2.3 The defendant by their impugned adoption and use infringing the plaintiffs TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 3 of 9 registered trademark under no. 2194548, passing off and enabling others to pass off their impugned business and services as that of the plaintiff, infringing the plaintiff's copyright, the defendant is illegally representing their association with the plaintiff, not only that the defendants are further guilty of falsification and unfair and unethical trade practices and diluting the vast goodwill and reputation of the plaintiff. Defendants are indulging the same business and services, which is in complete violation of plaintiff's statutory and common right in the said trademark/label/trade name/domain name. The defendants are not the proprietor of the impugned trade mark/ Label/ trade name/ domain name and have adopted and are so using in relation to their impugned business and services and is otherwise dealing with it in the course of trade without the leave and license of the plaintiff. 2.6 The plaintiff's prayer for exparte injunction and same was granted on dated 09.01.2018.
3. Process issued to the all the defendant and defendant was duly served through publication in newspaper "Prabhat Khabar/Aaj" dated 17.04.2018. On being served, neither the defendant appeared nor any WS/reply has been filed by the defendant despited being given number of opportunities; defendant was proceeded exparte on 07.08.2018 accordingly.
5. The plaintiff has led exparte evidence by way of an affidavit, reiterating the averments made in the plaint. In exparte evidence, PW1, Sh. Suresh Kumar, Senior Consultant executive and C.S. of plaintiff company, stepped into the witness box and deposed vide affidavit of evidence exhibited as Ex.PW1/A reiterating the contents of the plaint. He relied upon the following documents: S. no Name of the document Dated Exhibit (s) TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 4 of 9
1. Copy of incorporation 29.11.2010 Ex.PW1/1 and certificate same be read as Mark A
2. Resolution Ex.Pw1/2 and same be read as Mark B
3. Trade mark/ logo of the plaintiff Ex.PW1/3 and Ex.PW1/4
4. Copy of registration certificate 24.08.2011 EX.PW1/5 (OSR) bearing no. 2194548 in class 41
5. Copy of status of trade mark Ex.PW1/6 (colly) bearing application no.
3397508 and 3397509 in class 41
6. Year wise sale figures and 20132017 Ex.PW1/7 and Invoices (computer generated) same be read as Mark B 7 Information Brochure Ex.Pw1/8 8 Copies of advertisement Ex.PW1/9 (colly) material
9. Trademark / label of the Ex.Pw1/10 defendant
10. Local commissioner report 19.01.2018 Ex.PW1/11 (colly) This is the entire evidence adduced by the plaintiff.
6. Heard. Perused the records meticulously. I am of the considered view, plaintiff is entitled to a decree in his favour and against the defendant for the reasons stated as under: 6.1 Perusal of the documents and Pleadings filed by the plaintiff transpires that plaintiff's trademark are all registered and valid as on the date of filing of the suit.
TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 5 of 9 The registration gives exclusive rights to the plaintiff to protect their rights in said marks and take infringements actions against any party in violation thereof. By virtue of long, extensive and continuous use of trademark, plaintiff's marks have become inseparable and synonymous with the goods and services of the plaintiff. 6.2. As held by the Hon'ble High court of Delhi in "The Royal Bank of Scotland Group PLC Vs. Sharekhan Limited, 216(2015) DLT 197", quoted with approval in the case relied upon by the plaintiff:
'In order to establish infringement, the main ingredients of Section 29 of the Act are that the plaintiff's mark must be registered under the Act; the defendant's mark is identical with or deceptively similar to the registered trade mark; and the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The rival marks are to be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trade mark is likely to deceive and cause confusion as the registration show the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If court find that the defendant's mark is closely, visually phonetically similar, even then no further proof is necessary.' 6.3. In the present case, comparison of the marks as detailed in the plaint reflects the similarity between the impugned marks of defendants and the marks of the plaintiff; defendant's marks are structurally, visually and phonetically similar to TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 6 of 9 the plaintiff's marks. Rather, I would say they are identical, in all respects, to the marks of the plaintiff.
6.4. Customers base of the services of both the parties are same. The representation of the marks by the defendant tends to cause confusion in the minds of the general public as well as to the customers. If the defendant is permitted to use the impugned mark which are deceptively similar and confusingly to that of the plaintiff's company, it will not only cause wrongful loss to the plaintiff company, but it will also cause grave prejudice and harm to public. Not to mention about loss to the goodwill of the plaintiff.
6.5. Be that as it may be, defendant is exparte. Nothing has come on record to disbelieve the case of the plaintiff or to doubt the authenticity and veracity of the document filed on record. The defendants did not come forward to disprove the case of plaintiff his stand. Consequently, plaintiff is entitled to a decree for injunction in his favour and against the defendant.
4. Damages 4.1 In the present suit plaintiff is also claiming rendition of account by the defendant and damages in terms of prayer clause 'd' of the plaint. 4.2. A reference to the decision of Hon'ble High Court of Delhi titled as " The Heels V. Mr. V. K. Abrol and Anr. , CS (OS) No. 1385 of 2005 decided on 29.03.2006" would be profitable, wherein the Hon'ble court has held:
"This court has taken a view that where a defendant deliberately stays away from the proceedings with the result that on enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 7 of 9 on the conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable.
No doubt it not possible to give an exact figure of damages on the basis of actual loss, but certain token amounts on the basis of the sales of the plaintiff can certainly be made. The plaintiff is unnecessarily dragged into litigation and the defendants must bear consequences thereof. In fact in such a case both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff on such litigation. In view of the given sales figure of the plaintiff. I consider it appropriates to grant a decree of damages in favour of the plaintiff and against the defendants for a sum of Rs. 3 lakh apart from costs of the suit. ' 4.3 A useful reference may also be made to the case of Time Incorporated Vs. Lokesh Srivastava, 2005 (30) PTC 3 (Del) in this regard. 4.4 Thus, in view of my finding that the plaintiff is entitled to the relief of permanent injunction, also taking in to consideration the proposition of law stated above I am of the view plaintiff is entitled to punitive damages to the tune of Rs.2 lacs rupees in his favour and against the defendant.
5. Relief.
In view of my above discussion, the present suit is decreed in favour of the plaintiff and against the defendant in terms of the prayer clauses (a) to (d) of the plaint with punitive and compensatory damages for a sum of Rs.2 lacs.
TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 8 of 9 The suit stands disposed off as decreed qua defendant. Cost of the suit is awarded in favour of the plaintiff and against defendant. Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in the open court (Anil Antil) today ie. 18.08.2018. ADJ05/(SE)/Saket Court, New Delhi TM No. 02/18 Goal Educational Services Pvt. Ltd. Vs. Goal Institute Page no. 9 of 9