Delhi District Court
The Ritz Hotel Limited vs . Canada Fly Consultancy & Ors. on 3 January, 2019
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT
JUDGE05, SOUTH EAST DISTRICT, SAKET COURTS, ND.
TM No. 116/18
The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors.
The Ritz Hotel Limited
14, South Street, London,
W 1 K 1 DF
United Kingdom ..........Plaintiff
Versus
Canada Fly Consultancy
1401, Haware Infotech Park,
14th floor, Sector 30 A,
Vashi, Navi Mumbai ..........Defendant
Date of institution of the suit : 04.07.2018
Date reserved for judgment : 03.01.2019
Date of pronouncement of judgment : 03.01.2019
Decision Suit Decreed
JUDGMENT
1 The present suit was filed by the plaintiff for permanent injunction restraining infringement of trade marks, copyright, passing off, restrain of use of domain name damages, unfair competition rendition of account, delivery UP, ETC.
TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 1 of 10 2 Plaintiff's version as per averments in the plaint : 2.1 Succinctly, Plaintiff Company is the proprietor of the trade marks "'RITZ" (hereinafter referred to as the said marks/logos) and the said marks and logos are registered under the provisions of the Trademark Act in India.
2.2 The Plaintiff is the owner of the RITZ Paris Hostel located at Paris and is amongst the Top 6 Hotels in Paris for movies. The hotel has featured in several Hollywood movies as well as in Bollywood movie - Jhoom Barabar Jhoom. Additionally, Plaintiff is the owner of domain names www.ritz.com since 1st September, 1998 and www.ritzparis.com since 2nd December 1997 amongst several others. The websites are accessible across the globe, including in India, and can be used to make reservations at the RITZ Paris hotel.
2.3 In India, plaintiff's hotel are available through booking on leading Indian travel portals/ websites such as www.makemytrip.com, www.tripadvisor.com and www.goibibo.com etc. that carries reviews, photographs and amenities offered by the Plaintiff's hotels.
2.4 Apart from common law rights, the Plaintiff Company is statutory owner to use the trademark RITZ under the provisions of the Trademarks Act in India.
TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 2 of 10 2.5 Defendant No. 1 has been claiming to be a Government registered firms engaged in providing overseas employment consultancy and placement services mainly in Hotel industry overseas by using email address [email protected] and domain name www.ritzparis007.com.
2.6 The Defendant No. 2 is a service provider of the email address and Defendant No.3, which is the Registrar of the impugned Domain name.
2.7 That plaintiff in the last week of May, 2018 received several complaints from public via email and telephone regarding job openings by the Defendant No. 1 in the Plaintiff's RITZ hotel. The Defendant No.1 has been using the email address [email protected], [email protected] and domain name www.ritzparis007.com on the offer letters. The said activities illegal of the Defendant No. 1 are solely motivated to dupe aspiring candidates in the name of providing overseas employment in hotel industry by using the Plaintiff's trade name/trade mark and domain name/email. The Defendant No. 1 was further found to be using the Plaintiff's company seal on the offer/employment letters to various aspiring candidates.
2.8 That the Plaintiff on 01.06.2018 sent notice to the Defendant No. 1 to refrain from using the Plaintiff's said trades marks in TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 3 of 10 offering fake jobs and immediately stop its fraudulent activities. However, the Defendant No. 1 did not reply to the notice and has continued with its fraudulent activities in issuing fake jobs to the aspiring candidates with the objective of duping candidates. 2.9 That the Plaintiff being aggrieved by the continued/unauthorized use of the its mark and logo by the Defendant No. 1 has instituted the present suit to protect its proprietary rights in the said mark RITZ and RITZ PARIS and its logo and further protect the innocent public from being duped. 2.10 That on 17.07.2018 adinterim injunction was granted in favour of the plaintiff and against the defendant restraining him from using the impugned trademark/label/device. 2.11 Process issued to the defendants. Defendant 2 and 3 are proforma defendants and were deleted from array of parties vide order dated 22.11.2018. None has appeared on behalf of defendant no. 1(herein after referred as defendant) despite being duly served. No WS was thereafter filed on behalf of defendant despite being given number of opportunities. Vide order dated 22.11.2018 right of the defendant to file WS was stands closed and matter listed for plaintiff evidence.
3 In the meantime, Ld. Counsel for plaintiff filed an application under O VII R 10 CPC stating that defendant was duly served, no WS TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 4 of 10 has been filed, therefor plaintiff is entitled to a decree in terms of O VIII R 10 CPC against defendant. No reply to the said application was filed by the defendant.
3.1 Ld. Counsel for plaintiff relied upon the judgment passed by Hon'ble High Court of Delhi titled as Bennett Coleman & Company Limited Vs. M. Akram Pasha CS(COMM) 828/18 and I. A. 5748/18 decided on dated 08.08.2018 and another judgment titled as Louis Vuitton Malletier Vs. Kapil Pahula and Ors CS(OS) 1320/14 decided on 16.01.2018 to claim his relief in terms of O VIII R 10 CPC.
4 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.
5 As herein useful to refer to the decision by the Hon'ble High court of Delhi in "Satya Infrastructure Lted. And Ors Vs. Satya Ifra & Estates Pvt. Ltd, MANU/DE/0511/2013 " wherein the Hon'ble court has held that.
'I am of the opinion tht no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination in chief and which invariably is a repetition of the contents of the plaint. The plaintiff TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 5 of 10 otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination in chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are alredy on record. I have therefore heard the counsel for the plaintiff's on merits qua the relief of injunction."
6 The relevant facts of the preent case are that the plaintiff is owner of domain names www.ritz.com since 1st September, 1998 and www.ritzparis.com since 2nd December 1997 amongst several others. The websites are accessible across the globe, including in India, and can be used to make reservations at the RITZ Paris hotel. The Plaintiff has obtained numerous registrations of RITZ and RITZ PARIS marks worldwide. The earliest registration for RITZ marks dates back to 1908.
7 The Plaintiff Company is rightful owners to use the trademark RITZ under the provisions of the Trademarks Act in India. Plaintiff Company thus has exclusive right to use the said trademark and logos with respect to its products and no one is entitled to use the trademarks RITZ or any mark deceptively and confusingly similar to RITZ and TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 6 of 10 its aforesaid logos without a license or assignment by the Plaintiff Company.
8 That the defendant's has been using the email address [email protected], [email protected] and domain name www.ritzparis007.com on the offer letters. The said illegal activities of the Defendant are solely motivated to dupe aspiring candidates in the name of providing overseas employment in hotel industry by using the Plaintiff's trade name/trade mark and domain name/email. It is stated by the counsel for plaintiff that the defendant has adopted the above said domain name wit the malafide intent to gain mileage from the goodwill and reputation of the plaintiff under the marks RITZ. That the defendant email addresses are accessible all over India, including from New Delhi.
9 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. 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 of the plaintiff. All the documents filed on behalf of the plaintiff are duly supported with an affidavit and there is no reason to disbelieve the averments and TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 7 of 10 contents thereof.
10 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. 11 Besides as stated above no WS has been filed by the defendant to deny and controvert the allegations of the plaintiff. The defendant did not come forward to disprove the case of plaintiff his stand. In the opinion of this court, the defendant has no real prospect of defending the claim, as it has neither entered appearance nor filed its written statement. Further the plaintiff the registered user of the trade marks in question. Consequently, plaintiff is entitled to a decree for injunction in his favour and against the defendant.
12 Damages 12.1 In the present suit plaintiff is also claiming rendition of account by the defendant and damages in terms of prayer clause 'c' of the plaint.
12.2 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:
TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 8 of 10 "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 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. ' TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 9 of 10
13 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 cum compensatory damages to the tune of Rs.1 lakh rupees in its favour and against the defendant.
14 Relief.
In view of my above discussion the application is allowed and disposed of accordingly. The suit is decreed in favour of the plaintiff and against the defendant in terms of the para 33 prayer clauses (i) to
(iii) of the plaint with punitive /compensatory damages to the tune of Rs. 1 lakhs.
The suit stands disposed off as decreed.
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 on 03.01.2019 ADJ05, South East, District(SE)
Saket Court, New Delhi
TM No. 116/18 The Ritz Hotel Limited Vs. Canada Fly Consultancy & Ors. Page no. 10 of 10