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Delhi High Court

Apnatime Tech Pvt. Ltd. And Anr. vs Tmp Technologies Pvt. Ltd. And Anr. on 30 August, 2022

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

                          $~4
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                   Date of Decision: 30th August, 2022
                          +              CS (COMM) 557/2021 & I.A.14400/2021
                                APNATIME TECH PVT. LTD. AND ANR.                ..... Plaintiffs
                                              Through: Ms. Diva Arora Menon and Ms.
                                                       Devyani       Nath,          Advocates
                                                       (M:7042547106)
                                              versus
                                TMP TECHNOLOGIES PVT. LTD. AND ANR.        ..... Defendants
                                              Through: None.
                                CORAM:
                                JUSTICE PRATHIBA M. SINGH
                          Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The present suit has been filed seeking permanent injunction restraining passing off, rendition of accounts, damages, delivery up, and other reliefs. The Plaintiffs claim to be the owner and proprietor of the mark 'APNA' used in respect of a mobile and web-based portal, namely 'APNA JOB SEARCH' which is a networking platform that connects job seeking individuals with potential employers.

3. The case of the Plaintiffs is that the mark 'APNA' forms a key and essential feature of the corporate name of the Plaintiffs, as well as, the name of the Plaintiffs' mobile application 'APNA JOB SEARCH App', as also, the primary business domain name being 'www.apna.co'. The Plaintiffs case is that through its unique networking platform, the aim is to create better economic opportunities for the blue/grey workforce around the world by helping the job seekers to unlock unique networking and other related opportunities. The Plaintiffs also provide English language proficiency Signature Not Verified Digitally Signed CS(COMM) 557/2021 Page 1 of 7 By:DEVANSHU JOSHI Signing Date:31.08.2022 15:30:01 services and online vocational training through the 'APNA' application and website. It is submitted that the Plaintiffs, apart from a very large candidate pool, also offer a superior technological solution and use artificial intelligence to ensure the highest level of accuracy in matches, making it easier for both the job seeker and the prospective employer. As per the Plaint, the Plaintiffs claim to have facilitated over four lakh professional conversations between job seekers and prospective employers.

4. The Plaintiffs adopted the mark 'APNA' as a corporate name/mark on 24th April, 2019 with the incorporation of Plaintiff No.2 in the United States, and thereafter, the incorporation of Plaintiff No.1 in India on 9th May, 2019. The Plaintiffs registered the domain and launched a website being www.apna.co for this purpose on 6th June, 2019. Thereafter, a mobile application under the trademark 'APNA JOB SEARCH' was launched on the Google Play Store on 26th July, 2019. The Plaintiffs' mobile application is stated to be available in many vernacular languages. The Plaintiffs' mobile application offers search services at the lowest cost in the industry and has assisted more than 1.2 million individuals to secure interviews with over 25,000 potential employers within a span of one year of its launch. The Plaintiffs' business is also stated to be the first start-up to attain unicorn status in less than two years.

5. By virtue of the continuous and uninterrupted use of the mark 'APNA', both as a standalone mark and in the form of prefix to other variant marks, as also, the promotional expenditure of the Plaintiffs, the mark of the Plaintiffs has attained immense goodwill and reputation. The Plaintiffs have also obtained various registrations in respect of the mark 'APNA' and the details of the same have been set out in the Plaint.

6. The grievance of the Plaintiffs is that, sometime in the month of September, 2021, the Plaintiffs came across the Defendants' website being 'www.apnashareapp.com', as also, their mobile application being 'APNA SHARE APP'. A perusal of the website and mobile application indicated the Defendant No.1 is providing an online learning platform where individuals can share and learn skills from experienced professionals which will further help them secure jobs or succeed at their present jobs. Thus, it is the case of the Plaintiffs that the Defendants are providing identical services under a mark which identical to that of the Plaintiffs. Hence, the Plaintiffs filed the present suit.

7. Vide order dated 25th November, 2021, an ex parte ad-interim injunction was granted by the Court, in the following terms:

"14. On the strength of the aforenoted documents and those placed along with the plaint, the Plaintiffs have established a prima facie case in their favour. The balance of convenience also lies in favour of the Plaintiffs and in case, there is no intervention by the Court, irreparable harm will be caused to the Plaintiffs.

15. In light of the same, till the next date of hearing:

a. The Defendants, their partners, directors, principal officers, servants, representatives, agents and all others acting for and on its behalf are restrained from using the mark 'APNA', with or without the prefix 'Share', and/or any mark identical or deceptively similar mark to the Plaintiffs' trademarks, in a manner as may amount to 'passing off' of the Defendants' services and business as those of the Plaintiff;

b. The Defendants are restraining from using and operating the domain name 'www.apnashareapp.eom'.

c. The Defendants are directed to take down their Signature Not Verified Digitally Signed CS(COMM) 557/2021 Page 3 of 7 By:DEVANSHU JOSHI Signing Date:31.08.2022 15:30:01 social media pages, including https://www.facebook.com/ApnaShare/."

8. Despite the injunction order dated 25th November, 2021, the Defendant have not entered appearance in the present suit. None appears for the Defendants even today.

9. The Defendant No.1 has not filed its written statement, despite being served. Accordingly, as recorded in order dated 2nd August, 2022 passed by the Joint Registrar, the right to file the written statement already stands closed qua Defendant No.1. Service qua Defendant No.2 has also failed despite repeated attempts. The Defendants are, accordingly, proceeded against ex parte.

10. Under these circumstances, following the ratio of the judgment in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014], no ex parte evidence would be required in this matter. The view in Disney (supra) has been reiterated by the Court in S. Oliver Bernd Freier GMBH & CO. KG v. Jaikara Apparels and Ors. [210 (2014) DLT 381], as also, in United Coffee House v. Raghav Kalra and Ors. [2013 (55) PTC 414 (Del)]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under:

"3. Though the defendants entered appearance through their counsel on 01.02.2013 but remained unrepresented thereafter and failed to file a written statement as well. The defendants were thus directed to be proceeded ex-parte vide order dated 04.10.2013and the plaintiffs permitted to file affidavits by way of ex- parte evidence.

4. The plaintiffs, despite having been granted sufficient time and several opportunities, have failed to get their affidavits for leading ex-parte evidence on record.

However, it is not deemed expedient to further await the same and allow this matter to languish, for the reason that I have in Indian Performing Rights Society Ltd. Vs. Gauhati Town Club MANU/DE/0582/2013 held that where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing buta repetition of the contents of the plaint."

11. Ms. Menon, ld. Counsel for the Plaintiffs submits that the Defendants appear to have given up the mark 'APNA SHARE' which was injuncted by this Court, vide order dated 25th November, 2021. It is submitted that the Defendants are now using the mark 'POLYQ' and the domain name 'https://polyq.live/' for their website and other activities.

12. Heard ld. Counsel for the Plaintiffs. This Court has perused the reasoning behind the grant of the interim injunction, vide order dated 25th November, 2021, wherein the ld. Single Judge has recorded the extent of goodwill and reputation, as also, the rights of the Plaintiffs, in the mark 'APNA', which is also used in various forms and variants, including 'APNA', 'APNAJOBS', 'APNACHAT', 'APNACIRCLE', and 'APNAPROFILE'. The word 'APNA' has been used and promoted on a large scale by the Plaintiffs. As discussed above, the mark 'APNA' is the housemark of the Plaintiffs which, inter alia, provides vocational training and helps in job searches. The Plaintiffs' business is quite extensive and the services of the Plaintiff are used by several well-established corporate entities, such as Amazon, Flipkart, Big Basket, Dunzo, Sodexo, Fortis, Mahindra, D-mart, and Future Group etc. The use of the mark 'APNA SHARE' would, therefore, Signature Not Verified Digitally Signed CS(COMM) 557/2021 Page 5 of 7 By:DEVANSHU JOSHI Signing Date:31.08.2022 15:30:01 constitute passing off the Defendants' business as that of the Plaintiffs' business.

13. In view of the above discussion, the present suit is liable to be decreed in terms of the reliefs as sought in paragraph 31 (a), (b) and (c) of the Plaint. Accordingly, the Defendants and all others acting for and on behalf of the Defendants shall stand permanently restrained from using the mark 'APNA', with or without any prefix or suffix, or any other mark identical or deceptively similar to the Plaintiffs' trademarks, as set out in the Plaint, in any manner so as to pass off their services as that of the Plaintiffs.

14. The domain name of the Defendants being 'www.apnashareapp.com', registered in favour of the Defendant No.2- Openworks Solutions LLP, shall also be cancelled. For the said purpose, ld. Counsel for the Plaintiffs shall write to the concerned domain name registrar in respect of 'www.apnashareapp.com' for the cancellation of the said domain name. Upon receiving the said request, the concerned domain name registrar shall take down/ cancel the domain name 'www.apnashareapp.com' within 48 hours.

15. The Defendants shall also remove/take down all references to the mark/name 'APNASHARE', or any other mark which is identical or deceptively/confusingly similar to the Plaintiffs' marks, on any online or social media platforms.

16. It is noticed that the Defendants, in the present case, have not appeared even once since the passing of the interim order dated 25th November, 2021. In fact, it is seen that, vide order dated 9th November, 2021, court notice was issued to the Defendants before the passing of the injunction order dated 25 th November, 2021 and despite service of the same, the Defendants have failed to appear. Moreover, the Defendants have also changed their trading name.

Hence, it is clear to this Court that the Defendants have deliberately adopted the mark 'APNA SHARE', and have thereafter, chosen to stay away from the proceedings. Accordingly, the present is a fit case for the grant of costs. Let litigation costs of Rs.3,00,000/- be paid by the Defendants to the Plaintiffs within four weeks, failing which, the Plaintiffs are at liberty to seek appropriate reliefs in accordance with law.

17. The present suit stands decreed in the above terms. Decree sheet be drawn accordingly. All pending applications are disposed of.

PRATHIBA M. SINGH JUDGE AUGUST 30, 2022/dj/ad Signature Not Verified Digitally Signed CS(COMM) 557/2021 Page 7 of 7 By:DEVANSHU JOSHI Signing Date:31.08.2022 15:30:01