Delhi High Court
Dhani Loans And Services Limited & Anr. vs Www.Dhanifinance.Com & Ors. on 12 October, 2022
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22.09.2022
Date of decision: 12.10.2022
+ CS(COMM) 675/2019 & I.A.17453/2019
DHANI LOANS AND SERVICES LIMITED & ANR.
..... Plaintiffs
Through: Mr.Luv Virmani & Ms.Aadya
Chawla, Advs.
versus
WWW.DHANIFINANCE.COM & ORS. ..... Defendants
Through: Ms.Shweta Sahu, Adv.for D-2& 3.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. The present suit has been filed by the plaintiffs inter-alia seeking a
decree of permanent injunction restraining the defendant no. 1, its family
members, partners/promoters, directors, servants, agents, franchisees or
any one acting for and on their behalf in any manner using the impugned
trade mark/logo or the domain name
www.dhanifinance.com or any identical or deceptively similar trade
mark/name/logo or domain name either as a trade mark, trading style,
logo, domain name or in any other manner which is identical or
deceptively similar to the plaintiffs' trade marks 'DHANI' or the
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'POTLI' device stand-alone or in any combination thereof
and/or domain name www.indiabullsdhani.com, in relation to any
services especially for financial and transaction services and assistance
thereto.
2. The plaintiffs further prayed for a direction to the defendant nos. 2
and 3 to provide all the details of the registrant of the domain name of the
defendant no. 1; including the name, address, contact number, e-mail ID,
including its whereabouts and other such relevant details disclosing the
identity of the registrant of the domain name of the defendant no. 1, along
with the Internet Protocol (in short, 'IP') address of the domain name of
the defendant no.1.
3. As far as the defendant nos.2 and 3 are concerned, vide order of
this Court dated 22.09.2022, while passing certain directions, with the
consent of the plaintiffs and the defendant nos. 2 and 3, they were deleted
from the array of parties.
4. As far as the defendant no. 1 is concerned, it was proceeded ex-
parte vide order of this Court dated 22.08.2022. The defendant no. 1,
despite service, had neither entered appearance in the suit nor filed its
written statement.
FACTUAL BACKGROUND
5. It is the case of the plaintiffs that the plaintiffs are a part of the
Indiabulls Group, which has been providing financial services in India as
well as internationally since the year 1994. The Indiabulls Group, as on
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31.03.2018, had a combined revenue of over Rs. 22,114.9 Crore (Rupees
Twenty-Two Thousand One Hundred Fourteen and Nine Crore only) and
PAT of Rs. 6,072.2 Crore (Rupees Six Thousand Seventy-Two and Two
Crore only). The plaintiff no. 1 alone had a combined revenue of over Rs.
1650 Crore (Rupees One Thousand Six Hundred Fifty Crore only) and
PAT of over Rs. 400 Crore (Rupees Four Hundred Crore only) as on
31.03.2019.
6. The plaintiffs assert that the plaintiff no. 1 is a non-banking finance
company and is a wholly owned subsidiary of the plaintiff no. 2. The
plaintiff no. 1 is inter-alia engaged in the business of providing personal
loans, business loans and various other financial facilities through its
array of products.
7. It is further asserted that the plaintiff no. 2 is one of India's leading
capital market companies providing securities and derivative brokering
services. The plaintiff no. 2 was the first company to be assigned a BQ-1
Grading by the CRISIL, which is the highest broker quality grading.
Brickworks Ratings has also assigned a strong credit rating of BWR A+
and BWR A1+ for the plaintiff no.2's fund and non-fund-based facilities.
8. The plaintiffs further assert that in September 2017, the plaintiffs
launched its services for 'IndiabullsDhani' and along with the domain
name www.indiabullsdhani.com, a mobile and web-based loan
application developed to offer personal financing solutions. The mobile
application, 'Indiabullsdhani‟ was ranked as among the top three
downloaded mobile applications in the financial services sector, having
more than 11.5 million downloads as of September 2018.
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9. It is asserted that the plaintiff no. 1 is the registered proprietor of
the trade mark/logo/device of 'POTLI'/ in Class 9 and is the
registered proprietor of the trade mark/logo/device of the marks
'DHANI' and its variations thereof with the 'POTLI' device mark
in Classes 9, 35, 36 and 42. The details of the plaintiffs'
registrations for and bearing the 'POTLI' device mark under the
provisions of the Trade Marks Act, 1999 (in short, 'the Act') are set out
hereunder:
S. No. Trade Mark Class Application Date of Status
No. Application
1 9 3613787 16/08/2017 Registered
2 9 3613789 16/08/2017 Registered
3 9 3613791 16/08/2017 Registered
4 36 3613792 16/08/2017 Registered
5 9 3613793 16/08/2017 Registered
6 9 3613795 16/08/2017 Registered
7 36 3613796 16/08/201S7 Registered
8 9 3613797 16/08/2017 Registered
9 9 4127745 25/03/2019 Registered
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10 35 4132775 29/03/2019 Registered
11 42 4132777 29/03/2019 Registered
12 9 4131255 28/03/2019 Registered
13 36 4131268 28/03/2019 Registered
14 36 4131274 28/03/2019 Registered
10. The plaintiffs in the plaint have also given details of the trade mark
applications with the mark 'DHANI' as also the 'POTLI' device mark
, which are pending at various stages before the Trade Marks
Registry. The plaintiffs assert that these applications are being pro-
actively pursued by the plaintiffs before the Trade Marks Registry.
11. The plaintiffs assert that all their marks bear the word 'DHANI'
along with the 'POTLI' device mark . They give the screenshots
of the services provided by them under the Dhani services/applications,
reproduced here under:
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12. The plaintiffs claim that they have been promoting their trade
marks 'DHANI' as also the 'POTLI' device mark through
extensive advertisements, publicity, promotions, conferences through
various media including print and electronic media. The plaintiffs claim
to have incurred an expenditure of Rs. 5.94 Crore (Rupees Five Crore
Ninety-Four Lakh only) in advertising/publicising their said trade marks
within the period of 01.08.2017 to 30.09.2019.
13. The plaintiffs' domain name www.indiabullsdhani.com has been
registered since the year 2017 and the same is fully operational. Through
the said domain name, the public at large can get exclusive information
about the plaintiffs and the services they currently have on offer for
availing home loans, personal loans, securities advice, and investment
relations.
14. The plaintiffs further state that the original artistic works in the
device marks are a subject matter of protection under Section 2(c) of the
Copyright Act, 1956 (in short, 'Copyright Act') and the copyright therein
is exclusively owned by the plaintiffs. Further, the plaintiff no. 1 is the
registered copyright owner of bearing regisration no. A-
130733/2019 dated 02.09.2019, filed on 26.12.2017, of which the
'POTLI' device mark forms a prominent and essential part.
15. It is the case of the plaintiffs that the defendant no. 1, deliberately
and in brazen disregard to the plaintiffs' statutory and common law
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rights, started using the impugned mark as well as
operating a website under the impugned domain name
www.dhanifinance.com, offering identical services as that of the
plaintiffs.
16. The plaintiffs assert that the adoption of the plaintiffs' marks by
the defendant no. 1 is mala fide and aimed at establishing an illegal
association with the plaintiff no. 2 by seemingly coming across as just
another website/portal of the plaintiff no. 2. The screenshots of the
defendant no. 1's website are reproduced herein below:
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17. The plaintiffs assert that the adoption of the deceptively similar
mark by the defendant no. 1 and also for the domain name of its website
amounts to infringement of the registered trade marks of the plaintiffs as
also passing off and unfair trade practice and therefore, the defendant no.
1 is liable to be restrained from using the impugned domain name.
COURT PROCEEDINGS IN THE SUIT
18. This Court, vide order dated 10.12.2019, passed an ex-parte ad-
interim injunction restraining the defendant no. 1 from using the
plaintiffs' trade marks 'DHANI' or the 'POTLI' device mark
and the logo and domain name -
www.dhanifinance.com , separately or in any combination. The
defendant no. 1 was further restrained from adopting any other marks,
logos and domain names which were deceptively similar to the plaintiffs.
19. With respect to defendant nos. 2 and 3, this Court vide the same
order had issued a direction to suspend the operation of the domain name
www.dhanifinance.com.
20. As noted herein above, vide order of this Court dated 22.08.2022,
the defendant no. 1 has been proceeded ex-parte, while by the order of
this Court dated 22.09.2022, the defendant nos.2 and 3 were deleted from
the arrary of the parteis with inter-alia a direction to transfer the domain
name of the defendant no.1 to the plaintiffs.
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SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL FOR THE
PLAINTIFFS
21. The learned counsel for the plaintiffs submits that the defendant
no.1, by using the impugned marks 'DHANI' with and/or without the
'POTLI' device mark and by creating and operating the
impugned domain name www.dhanifinance.com, which is not only
deceptively similar to the plaintffs' registered trade marks but also is
offering services identical to those of the plaintiffs, is intending to
deceive unwary consumers. The learned counsel for the plaintiffs submits
that such use amounts to infringment of the plaintiffs' registered trade
marks and also results in passing off services of the defendant no. 1 as
that of the plaintiffs.
22. The learned counsel for the plaintiff states that the act of the
defendant no. 1 of using a mark/logo deceptively similar to the logo
amounts to infringment of the plaintiffs' registered
copyright.
23. The learned counsel for the plaintiffs submits that as the defendant
no. 1 has neither filed the written statement nor entered apperance, this is
fit case for passing of a Summary Judgment under Order XIII-A of the
Code of Civil Procedure, 1908, as applicable to the commercial disputes
of a specified value (in short, 'CPC').
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ANALYSIS AND FINDINGS
24. I have considered the submissions made by the learned counsel for
the plaintiffs.
25. From the above narration of facts, it is apparent that the plaintiffs
are the registered proprieotors of the mark containing the word 'DHANI'
as also the 'POTLI' device mark . The defendant no. 1 has
adopted a deceptively similar mark . The services
provided by the the plaintiffs and those of the defendant no. 1 are
common. Such adoption of the mark would therefore amount to
infringment of the registered trade marks of the plaintiffs. The same
would also result in passing off of the services of the defendant no. 1 as
that of the plaintiffs or as having some association with the plaintiffs. It
would amount to unfair trade practices as also lead to the dilution of the
plaintiffs' mark 'DHANI' and the 'POTLI' device mark
26. The plaintiffs have been able to establish their reputation in the
subject marks through their turnover figures and the amount spent on
advertising the marks. The plaintiffs shall therefore suffer grave
irreparable injury in case the defendant no. 1 is not restrained from using
its deceptively similar mark.
27. Recently, in Indiabulls Housing Finance Ltd. & Ors. v.
www.indiabullsdhanifinance.co & Anr., CS(COMM) 674/2019, vide
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judgment and order dated 31.05.2022, a Coordinate Bench of this Court
has held as under with respect to the subject marks of the plaintiffs:
"14. This Court finds merit in the contention of
the Plaintiffs that Defendant No. 1 by using the
trademarks „INDIABULLS‟, „DHANI‟ and
(device), which are identical to the
Plaintiffs‟ registered trademarks as well as by
creating and operating the impugned domain
name www.indiabullsdhanifinance.co, which is
deceptively similar to Plaintiffs‟ domain names
www.indianbulls.com and
www.indiabullsdhani.com, is infringing the
statutory rights of the Plaintiffs. Defendant No. 1,
under the aforesaid trademarks is providing
services relating to financial transactions,
personal loans etc., which are similar to those of
the Plaintiffs and the consumer base is also the
same. Therefore, in my view, the triple identity test
of identical/deceptively similar trademarks,
identical services and trade channels stands
satisfied and use of the impugned
trademarks/domain name by Defendant No. 1
constitutes infringement of the Plaintiffs‟
registered trademarks...
xxxxx
17. From the plaint and the documents placed
on record, it is evident that impugned marks are
similar to Plaintiffs‟ trademarks/device mark and
are indubitably used with an intent to
misrepresent, exploit and encash the formidable
goodwill as well as reputation of the Plaintiffs.
Plaintiffs have been continuously and extensively
using the trademarks for their financial services,
which is evident from the combined revenue of
over Rs.14,640 crores as on 31.03.2019 of
Plaintiff No. 1 and over Rs.1650 crores as on
31.03.2019 in respect of Plaintiff No. 2.
Promotional and advertisement expenses run into
Rs.47,24,92,990 for the financial years 2017-
2019. The website as displayed is likely to lead the
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unwary consumers to assume a business
connection between Defendant No. 1 and the
Plaintiffs. Documents further evidence that
Defendant No. 1 has been sending messages/e-
mails to potential customers, portraying itself as a
part of Plaintiffs‟ companies and was also sending
links for payments for loan applications with bank
account details. Defendant No. 1 has also
published a number on its website which,
according to the averment in the plaint, though
unrebutted, on the TrueCaller shows as „India
Bulls Tollfree‟. In light of the said facts and the
settled law, this Court finds that Defendant No. 1
has committed the tort of passing off.
18. Plaintiffs have claimed copyright in their
logo comprising of Potli device mark, the words
„INDIABULLS‟ and „DHANI‟ i.e.
. Plaintiff No. 2 is the registered
copyright owner of the said logo bearing the
registered copyright owner of the said logo
bearing registration no. A-130733/2019 dated
02.09.2019 in „original artistic work‟ under
Section 2(c) of the Copyright Act, 1957 and the
copyright subsists in the said artistic work under
Section 13(1) of the Copyright Act. Plaintiffs have
copyright ownership in get-up, look, layout and
arrangement on their websites and Defendant No.
1 is using the copyrighted logo of the Plaintiffs
with a similar layout etc., thereby infringing on
the Plaintiffs‟ copyright."
28. The above judgment applies to the facts of the present case in full
force.
29. As far as the domain name/website of the defendant no. 1 is
concerned, the same is also deceptively similar to that of the plaintiffs. It
is likely to deceive an unwary consumer of its association with the
plaintiffs. Recently, this Court in Anugya Gupta v. Ajay Kumar and
Anr., 2022 SCC OnLine Del 1922 has held that the right of a proprietor
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in a domain name and its protection, applying the principles of the trade
mark law, is no longer res integra. The use of the same or similar
domain name may lead to diversion of users, which could result from
such users mistakenly accessing one domain name instead of another.
Therefore, a domain name may have all the characteristics of a trade
mark and could found an action for passing off. While the registration of
a domain name with such Domain Name Registrars may not have the
same consequences as registration under the Act, nevertheless, it at least
evidences recognised user of a mark.
30. Referring to the Uniform Domain Name Disputes Resolution
Policy, the Supreme Court in Satyam Infoway Ltd. v. Siffynet Solutions
(P) Ltd., (2004) 6 SCC 145 observed that the said rules grant protection
to the intellectual property in a domain name. A prior registrant can
protect its domain name against the subsequent registrants. The confusing
similarity in domain names may be a ground for complaint and similarity
is to be decided on the possibility of deception amongst potential
customers. The defences available to a complaint are also substantially
similar to those available to an action for passing off under trade mark
law.
31. Placing further reliance on Info Edge (India) Pvt. Ltd. v. Shailesh
Gupta, 2002 SCC OnLine Del 239, this Court in Anugya Gupta (supra)
observed that internet domain names are valuable properties and are of
importance to the parties registering the same. It is entitled to equal
protection as a trade mark. In NRB Bearings Limited v. Windsor Export,
2014 SCC OnLine Del 1672, this Court reiterated that a domain name
serves the same function as the trade mark and is not a mere address or
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like-finding number on the internet and, therefore, is entitled to equal
protection as a trade mark. Where there is a probability of confusion in
business, an injunction will be granted even though the defendants
adopted the name innocently.
32. In the present case, the defendant no. 1 has chosen neither to file
its written statement nor to enter apperance in the suit to defend the same.
This is in spite of the ad-interim order dated 10.12.2019, not only
restraining the defendant no.1 from using the trade marks 'DHANI' or
the 'POTLI' device mark and the logo and
domain name - www.dhanifinance.com and directing defendant nos.2
and 3 to suspend its website. In my opinion, therefore, this is a fit case
where a Summary Judgment in terms of Order XIII-A of the CPC, as
applicable to commercial disputes of a specified value, read with Rule 27
of the Delhi High Court Intellectual Property Rights Division Rules, 2022
deserves to be passed in favour of the plaintiffs and against the defendant
no. 1.
33. In view of the above, the plaintiffs have been able to make out a
case for grant of a permanent injunction restraining the defendant no. 1,
its family members, partners/promoters, directors, servants, agents,
franchisees or any one acting for and on their behalf in any manner using
the impugned trade mark/logo or the domain
name www.dhanifinance.com or any identical or deceptively similar
trade mark/name/logo or domain name either as a trade mark, trading
style, logo, domain name or in any other manner which is identical or
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deceptively similar to the plaintiffs' trade marks 'DHANI' or the
'POTLI'/ device stand-alone or in any combination thereof
and/or domain name www.indiabullsdhani.com, in relation to any
services especially for financial and transaction services and assistance
thereto.
34. As far as the relief of damages and rendition of accounts is
concerned, this Court in Intel Corporation v. Dinakaran Nair & Ors.,
2006 SCC OnLine Del 459 has held as under:
"13. The only other question to be
examined is the claim of damages of Rs. 20
lakh made in para 48(iii) (repeated) of the
plaint. In this behalf, learned Counsel has
relied upon the judgments of this Court
in Relaxo Rubber Limited v. Selection
Footwear, 1999 PTC (19) 578; Hindustan
Machines v. Royal Electrical Appliances,
1999 PTC (19) 685; and CS (OS)
2711/1999, L.T. Overseas Ltd. v. Guruji
Trading Co., 123 (2005) DLT 503 decided
on 7.9.2003. In all these cases, damages of
Rs. 3 lakh were awarded in favour of the
plaintiff. In Time Incorporated v. Lokesh
Srivastava, 2005 (30) PTC 3 (Del) apart
from compensatory damages even punitive
damages were awarded to discourage and
dishearten law breakers who indulge in
violation with impunity. In a recent
judgment in Hero Honda Motors
Ltd. v. Shree Assuramji Scooters, 125
(2005) DLT 504 this Court has taken the
view that damages in such a case should be
awarded against defendants who chose to
stay away from proceedings of the Court
and they should not be permitted to enjoy
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the benefits of evasion of Court
proceedings. The rationale for the same is
that while defendants who appear in Court
may be burdened with damages while
defendants who chose to stay away from the
Court would escape such damages. The
actions of the defendants result in affecting
the reputation of the plaintiff and every
endeavour should be made for a larger
public purpose to discourage such parties
from indulging in acts of deception.
14. A further aspect which has been
emphasised in Time Incorporated
case (supra) is also material that the object
is also to relieve pressure on the overloaded
system of criminal justice by providing civil
alternative to criminal prosecution of minor
crimes. The result of the actions of
defendants is that plaintiffs, instead of
putting its energy for expansion of its
business and sale of products, has to use its
resources to be spread over a number of
litigations to bring to book the offending
traders in the market. Both these aspects
have also been discussed in CS(OS) No.
1182/2005 titled Asian Paints (India)
Ltd. v. Balaji Paints and Chemicals decided
on 10.3.2006. In view of the aforesaid, I am
of the considered view that the plaintiff
would also be entitled to damages which
are quantified at Rs. 3 lakh."
35. In the case of Hindustan Lever Ltd. and Anr v. Satish Kumar,
2012 SCC OnLine Del 1378, this Court again held as under that:
"23. One of the reasons for granting relief of
punitive damages is that despite of service of
summons/notice, the defendant had chosen not to
appear before the court. It shows that the
defendant is aware of the illegal activities
otherwise, he ought to have attended the
proceedings and give justification for the said
illegal acts. Since, the defendant has maintained
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silence, therefore, the guilt of the defendant
speaks for itself and the court, under these
circumstances, feels that in order to avoid future
infringement, relief of punitive damages is to be
granted in favour of the plaintiff."
36. In Indiabulls Housing Finance Ltd. & Ors. (supra) this Court, on
the question of damages, has held as under:
"19. Learned counsel for the Plaintiffs has also
pressed for punitive damages and cost. Insofar as
the award of punitive damages is concerned, I
may only refer to a passage from the judgment by
a Co-ordinate Bench of this Court in Proctor &
Gamble Company v. Joy Creators & Others,
2011 SCC OnLine Del 929, as follows:
"27. In Larsen and Toubro Limited v.
Chagan Bhai Patel: MIPR 2009 (1) 194,
this Court observed that it would be
encouraging the violators of intellectual
property, if the defendants notwithstanding
having not contested the suit are not
burdened with punitive damages.
28. Also, the Court needs to take note of the
fact that a lot of energy and resources are
spent in litigating against those who
infringe the trademark and copyright of
others and try to encash upon the goodwill
and reputation of other brands by passing
of their goods and/or services as those of
that well known brand. If punitive damages
are not awarded in such cases, it would
only encourage unscrupulous persons who
actuated by dishonest intention, use the
well-reputed trademark of another person,
so as to encash on the goodwill and
reputation which that mark enjoys in the
market, with impunity, and then avoid
payment of damages by remaining absent
from the Court, thereby depriving the
plaintiff an opportunity to establish actual
profit earned by him from use of the
infringing mark, which can be computed
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only on the basis of his account books. This
would, therefore, amount to putting
premium on dishonesty and give an unfair
advantage to an unscrupulous infringer
over those who have a bona fide defence to
make and therefore come forward to contest
the suit and place their case before the
Court."
20. This Court is in agreement with the
submissions of learned counsel for the Plaintiffs
that in the instant case, punitive damages must be
awarded against Defendant No. 1, who has
infringed the trademarks as well as the copyright
of the Plaintiffs and has attempted to pass off its
services as that of the Plaintiffs and has chosen to
stay away from the proceedings of the Court,
despite service. It has been held in various
judgments that a Defendant who chooses to stay
away from the Court proceedings, should not be
permitted to escape the liability when found guilty
of committing a wrongful act. It would be in
public interest if parties indulging in acts of
deception are penalised by punitive damages, in
order to discourage such acts. As a result the
Court awards damages to the tune of Rs.
3,00,000/- in favour of the Plaintiffs."
37. Following the above, the plaintiffs are held entitled to damages to
the tune of Rs. 3,00,000/- (Rupees Three Lakh only) from the defendant
no. 1.
38. The plaintiffs shall also be entitled to costs of the suit.
RELIEF
39. Accordingly, a decree of permanent injunction in terms of prayers
(a) to (c) of the plaint is passed in favour of the plaintiffs and against the
defendant no. 1. The plaintiffs are held entitled to damages quantified at
Rs. 3,00,000/- as also the costs of the suit to be recovered from the
defendant no. 1. Let a decree-sheet be drawn accordingly.
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40. The suit and the pending application are accordingly disposed of.
NAVIN CHAWLA, J.
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