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Delhi High Court - Orders

Triumphant Institute Of Management ... vs T.I.M.E. Tirupati & Ors on 13 May, 2022

Author: Jyoti Singh

Bench: Jyoti Singh

                          $~17
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     CS(COMM) 320/2022
                                TRIUMPHANT INSTITUTE OF
                                MANAGEMENT EDUCATION PVT LTD                           ..... Plaintiff
                                                    Through: Ms. Bitika Sharma, Mr. Lakshay
                                                    Kaushik, Mr. Vikram Singh Dalal and Ms. Aadya
                                                    Chawla, Advocates.

                                                    versus

                                T.I.M.E. TIRUPATI & ORS.                               ..... Defendants
                                                Through: None.

                                CORAM:
                                HON'BLE MS. JUSTICE JYOTI SINGH
                                                    ORDER

                          %                         13.05.2022
                          I.A. 7569/2022(exemption)

1. Subject to the Plaintiff filing originals, clearer copies and documents with proper margins, which it may seek to place reliance on, within four weeks from today, exemption is granted.

2. Application is allowed and disposed of.

I.A. 7570/2022(additional documents)

3. Present application has been preferred on behalf of the Plaintiff seeking leave to file additional documents under Order 11 Rule 1(4) CPC.

4. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015.

5. Application is allowed and disposed of.

Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 1 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37

I.A. 7571/2022 (exemption from advance service)

6. Since there is an urgency in the matter and the matter is being heard today, Plaintiff is exempted from serving advance notice on Defendants.

7. For the reasons stated in the application, the same is allowed and disposed of.

I.A. 7572/2022 (section 12A)

8. For the reasons stated in the application, the requirement of pre- institution mediation is dispensed with.

9. Application is allowed and disposed of.

I.A. 7573/2022 (exemption)

10. Allowed, subject to all just exceptions.

11. Application stands disposed of.

CS(COMM) 320/2022

12. Let plaint be registered as a suit.

13. Upon filing of process fee, issue summons to the Defendants, through all permissible modes, returnable on 03.08.2022. Summons shall state that the written statement shall be filed by the Defendants within 30 days from the receipt of summons. Along with the written statement, Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff.

14. Replication be filed by the Plaintiff within 15 days of the receipt of the written statement. Along with the replication, an affidavit of admission/denial of documents filed by the Defendants, shall be filed by the Plaintiff.

15. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

16. List before the Joint Registrar on 03.08.2022.

17. List before the Court on 31.08.2022.

Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 2 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37

I.A. 7567/2022(under Order 39 Rules 1 and 2 CPC)

18. Present application has been preferred by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure 1908 for grant of ex-parte ad-interim injunction.

19. Issue notice to the Defendants through all prescribed modes, returnable on 31.08.2022.

20. It is the case of the Plaintiff that it is the renowned owner of a comprehensive chain of coaching institutes and training centres, operating across India. Plaintiff Company offers premium education and training for CAT and other national level exams including BANK, GATE, CLAT, IIT, GMAT, etc. and is a one-stop shop for aspiring candidates to get into leading institutes across the country. The said coaching institutes are being run under the trade mark and style 'T.I.M.E.'

21. It is averred that Plaintiff is the registered proprietor of the trademarks 'T.I.M.E. - TRIUMPHANT INSTITUTE OF MANAGEMENT EDUCATION', 'T.I.M.E. TUTIONS' and the logos thereof, in classes 16, 38 and 41. The trademark T.I.M.E. was coined by the Plaintiff at the time of its inception in 1992 and has been extensively and continuously used since then in respect of educational and training services. Details of the registrations, which are valid and subsisting are mentioned in para 26 of the plaint.

22. It is stated that Plaintiff adopted the mark T.I.M.E as an acronym of their name 'Triumphant Institute of Management Education' and has been using the same for the last 20 years. The mark is inherently distinctive and exclusively associated with the Plaintiff and none else qua educational and coaching services. Activities of the Plaintiff have grown over the last twenty- nine years and the name/brand T.I.M.E has acquired huge reputation and Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 3 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37 goodwill in the field of educational services and training/coaching services in India. Plaintiff's coaching institute, being one of India's top coaching institutes, trains more than 1,00,000 aspirants for various competitive examinations every year and is regarded as one of the best coaching institutes in India for selection in various competitive examinations.

23. It is averred that Plaintiff has a brand turnover of approximately Rs.146 Crores in the financial year 2020-2021. Details of the Plaintiff's brand turnover for the last 11 years are given in para 18 of the plaint.

24. It is averred that Plaintiff has spent considerable amount of expenditure on advertisement to popularize its trade mark T.I.M.E. Details of the expenditure spent on the advertisement for the last 4 years have been furnished, which reflect an expenditure of Rs.228.20 Lakhs for the year 2020- 21.

25. It is averred that Plaintiff also provides coaching services by way of recorded video lectures to its students, which is an integral part of the Plaintiff's teaching mechanism. The video lectures can be viewed by students enrolled with the Plaintiff Company on its website http://www.time4education.com. The said domain name has been registered in the name of the Plaintiff since 25.08.2000 and the website is fully operational.

26. It is averred that the Plaintiff is also the owner of YouTube Channel named 'TIME4Education' since March 2016. Plaintiff provides pre-recorded video lectures to its students through its YouTube Channel. Plaintiff has also chosen to make online services available through its website, YouTube Channels as well as mobile applications to enable prospective students/franchisees to get exclusive information about the Plaintiff and its Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 4 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37 courses as desired. The elaborate video sessions created by the Plaintiff Company are of immense help to the students, especially for those who wish to make up for the lost sessions or those who wish to revise a session for more clarity in certain subject areas. It is stated that the Plaintiff's website, YouTube channel and mobile applications attract a large number of customers, potential or otherwise.

27. It is averred that Defendant No.1 is a proprietorship entity, engaged in providing educational and coaching services to students under the mark/trade name 'T.I.M.E. Tirupati' and is also operating Twitter, Instagram, LinkedIn Account and YouTube channel for the same, where the Defendants advertise and share promotional materials, brochures, etc. in furtherance of their illegal and unauthorized business venture of offering coaching services.

28. It is averred that Defendant No. 2 was operating as a Franchisee of the Plaintiff Company. Plaintiff had entered into a Franchise Agreement with the Defendants on 16.02.2013, vide which the Defendants were allowed to run their coaching centre under the trademark/ tradename T.I.M.E. by using the goodwill, reputation, services and products of the Plaintiff to that effect. The term of the said Agreement was three years after which it was further renewed for another 3 years w.e.f. 16.02.2013 till 15.02.2019. The agreement was further renewed thereafter for a period of one year w.e.f. 16.02.2019 to 15.02.2020. The Agreement was terminated on the closing of business hours, on 15.02.2020.

29. It is averred that in October, 2021, it came to the notice of one of the officials of the Plaintiff Company that Defendants even after the termination of the Agreement, are still continuing to do their business under the Plaintiff's trademark/name T.I.M.E. and are offering identical services as that of the Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 5 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37 Plaintiff under an identical and highly deceptively mark/ trade name 'T.I.M.E Tirupati' on brochures, pamphlets, flyers, and other promotional materials.

30. It is averred that Plaintiff in October 2021, upon coming across the Defendants' use of the impugned mark 'T.I.M.E. Tirupati' which is identical and highly deceptively similar to the Plaintiff's trademark/tradename T.I.M.E., Plaintiff served the Defendants with a Cease and Desist Notice on 27.11.2021.

31. It is averred that Defendants have, in a blatant and brazen manner, infringed the Plaintiff's well-known trademarks 'T.I.M.E. -TRIUMPHANT INSTITUTE OF MANAGEMENT EDUCATION', 'T.I.M.E. TUTIONS', 'time4education' and (device). It is further averred that the Defendants have merely added the word 'Tirupati', which is the name of a well-known city in Andhra Pradesh, as a suffix to the Plaintiff's prior adopted, registered and in-use trademark/tradename T.I.M.E. Defendants have intentionally conjured the impugned trade name as 'T.I.M.E. Tirupati'. Defendants have registered themselves as a proprietorship concern under the trade name 'T "dot" I '"dot" M "dot" E "dot" Tirupati' which is an exact reproduction of the Plaintiff's trademark T.I.M.E. It is further submitted that the Defendants have not used the word 'TIME' per se in their tradename rather they have blatantly copied T "dot" I '"dot" M "dot" E "dot" which is an acronym for the Plaintiff's Company, Triumphant Institute of Management Education thereby evidencing their mala fide intent to deceive the public and encash upon the goodwill and reputation of the Plaintiff. By doing so, the Defendants have attempted to ensure that there is maximum likelihood of Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 6 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37 confusion amongst the unwary public at large. A pictorial comparison of the Plaintiff's trademark and Defendants' mark is provided hereunder for ready reference:

32. It is further averred that on a bare perusal of the impugned tradename 'T.I.M.E. Tirupati', it is evident that confusion is inevitable as to its origin since the impugned tradename used by the Defendants is identical and highly deceptively similar to that of the Plaintiff Company. Defendants are using the Plaintiff's trade mark (device) along with the impugned mark/ tradename 'T.I.M.E. Tirupati' on all their social media accounts, Twitter, Instagram, LinkedIn, Facebook and their YouTube Channel as well as on the brochures, pamphlets, promotional materials, etc. It is thus submitted that it is highly likely that the members of the trade and the consumers shall be misled into believing that the Plaintiff is running a coaching centre in Tirupati under the impugned trade name 'T.I.M.E. Tirupati' and that the Defendants are a collaborative venture of the Plaintiff for the purposes of providing coaching services to the students in Tirupati, which in fact is not the case. This clearly establishes that the Defendants have adopted the impugned mark/tradename 'T.I.M.E. Tirupati' only keeping in mind the well-established goodwill and Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 7 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37 reputation of the Plaintiff.

33. It is averred that the Defendants are also providing virtual video learning classes to all the students under the impugned mark/tradename 'T.I.M.E. Tirupati'. It is submitted that these online video classes/sessions are and shall be accessible to everyone across India. Thus, the students who wish to prepare for the competitive examinations can enrol themselves with the video learning classes of the Defendants under a false and mistaken belief that these online classes are being provided and authorized by the Plaintiff which is in fact not the case. It is thus submitted that great prejudice, grave loss, and irreparable harm will be caused to the well-established goodwill and reputation associated with the Plaintiff and its trademarks.

34. It is further averred that upon an online search on Google search engine regarding T.I.M.E. coaching classes in Tirupati, Andhra Pradesh, results pertaining to the Defendants' coaching institute, i.e., T.IM.E. Tirupati are displayed but with the Plaintiff's registered trade mark (device) and a link to the Plaintiff's official website www.time4education.com. It is submitted that the Defendants are misrepresenting themselves as authorized and lawful coaching institute running under the aegis of the Plaintiff, which in fact is not the case. It is further submitted that the students who wish to enrol themselves with the T.I.M.E coaching classes in Tirupati, Andhra Pradesh shall be misled into believing that the Defendants' coaching institute is running under the control, guidance, and management of the Plaintiff and it is offering the same standard of quality education and coaching to the students, which would impact the goodwill and reputation of the Plaintiff.

Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 8 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37

35. 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. 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.

36. Accordingly, Defendants, their principal officers, assignees, family members, servants and agents and all other persons claiming under the Defendants are restrained from providing any services, advertising and/or promoting and/or using the mark 'T.I.M.E. Tirupati' along with the trade mark (device) and/or any other mark/name/label/device/ domain name that is identical and/or deceptively similar/infringing to the Plaintiffs' trademarks 'T.I.M.E. -TRIUMPHANT INSTITUTE OF MANAGEMENT EDUCATION', 'T.I.M.E. TUTIONS' and 'time4education' and trademark (device), till the next date of hearing.

37. Defendants, their principal officers, assignees, family members, servants and agents and all other persons claiming under the Defendants are further restrained from in any manner, passing off their services under the mark/tradename 'T.I.M.E. Tirupati' along with the trade mark (device) as those being provided by the Plaintiff under its trade marks 'T.I.M.E. - TRIUMPHANT INSTITUTE OF MANAGEMENT Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 9 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37 EDUCATION', 'T.I.M.E. TUTIONS' and 'time4education' and trade mark (device), till the next date of hearing.

38. Defendants, their principal officers, assignees, family members, servants and agents and all other persons claiming under the Defendants are further restrained from diluting and tarnishing the Plaintiff's trademarks/logo/labels 'T.I.M.E. TRIUMPHANT INSTITUTE OF MANAGEMENT EDUCATION', 'T.I.M.E. TUTIONS' and 'time4education' in any manner whatsoever, and indulging in acts of unfair competition qua the Plaintiff's trademarks, till the next date of hearing.

39. Plaintiff shall comply with the provisions of Order 39 Rule 3 CPC within one week from the execution of the commission by the Local Commissioner.

I.A. 7568/2022 (appointment of Local Commissioner)

40. Present application has been preferred by the Plaintiff under Order 26 Rules 9 and 10 read with Order 39 Rule 7 read with Section 151 CPC, seeking appointment of a Local Commissioner.

41. Upon hearing, the application is allowed.

42. Accordingly, Mr. Vishnu Menon, Advocate (Mobile No. 8860442057) is appointed as a Local Commissioner, who shall visit the premises of the Defendants at the following address:-

Proprietor of T.I.M.E., Tirupati G1 and G2, Aditya Towers Balaji Colony, Chittoor, Tirupati -517502 Andhra Pradesh Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 10 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37

43. Local Commissioner shall visit the aforesaid premises, search and take into custody the infringing products bearing the Plaintiff's registered trademarks including but not limited to study materials, marketing material, flyers, pamphlets, brochures, advertisements, etc. and make an inventory of the same.

44. Local Commissioner along with the Representative of the Plaintiff and/or its counsel shall be permitted to enter the premises of the Defendants, as aforementioned.

45. Local Commissioner shall seize the infringing products and hand over the same to the Defendants on superdari, upon the Defendants furnishing an undertaking that it shall produce the goods, so seized, before the Court, as and when further directions are issued in this regard.

46. Local Commissioner shall make copies and sign books of accounts including account books/ledgers/case books, bill books, etc. discovered from the premises of the Defendants.

47. Local Commissioner shall be permitted to take photographs/videos of the execution of the Commission. He shall also be entitled to seek police assistance or protection of the Local Police Station, if so required, for the purpose of execution of the order of this Court. The SHO of the concerned Police Station is directed to provide necessary assistance to the Local Commissioner, if sought for.

48. In case the premises as aforementioned are found locked, the Local Commissioner is at liberty to break open the locks.

49. Plaintiff shall serve a copy of this order upon the Defendants along with paper book of the suit at the time of execution of the proceedings.

50. Fee of the Local Commissioner is fixed at Rs.1,50,000/- in addition to Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 11 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37 travel, boarding and lodging expenses as well as other miscellaneous out-of- pocket expenses for the execution of the Commission. Fees of the Local Commissioner shall be paid in advance by the Plaintiff.

51. Report of the Local Commissioner shall be filed within two weeks of the execution of the Commission.

52. Plaintiff shall inform the Registry about the execution of the proceedings by the Local Commissioner and only thereafter Registry shall issue summons of the suit to the Defendants.

53. This order shall not be uploaded on the website of this Court till execution of the Commission by the Local Commissioner.

54. Application is disposed of.

55. Copy of this order be given to learned counsel for the Plaintiff dasti under the signatures of the Court Master.

JYOTI SINGH, J MAY 13, 2022/st Signature Not Verified Digitally Signed CS(COMM) 320/2022 Page 12 of 12 By:KAMAL KUMAR Signing Date:16.08.2022 11:09:37