Delhi District Court
S.K.Educations Pvt.Ltd vs Sanjeet Choudhary on 27 October, 2023
IN THE COURT OF MS. RAVINDER BEDI
DISTRICT JUDGE (COMMERCIAL COURT)-12
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CS (COMM) 2019/2019
M/s. S.K. Educations Pvt. Ltd.
Through its Authorized Representative,
Sh. N.K. Jain,
Having its registered Office at:
9988/B-1, Sarai Rohilla,
New Rohtak Road,
Delhi-110005 ..... Plaintiff
Versus
Mr. Sanjeet Choudhary
S/o. Mr. Suranjan Prasad,
C/o. Bachpan; a Play School,
Chaudhary Bhandar, Cart Sarai Road,
Upper Bazar, Ranchi,
Jharkhand-834001 ..... Defendant
Date of institution of suit : 20.12.2018
Date of arguments : 20.10.2023
Date of order : 27.10.2023
CS (COMM) No. 2019/2019
M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.1 of 10
JUDGMENT
1. The instant suit is filed by Plaintiff - a company, seeking permanent and mandatory injunction against Defendant from running/administering Play School under the trademark "BACHPAN" and "BACHPAN...a Play School" or any other trademark which is deceptively similar to plaintiff's trademark.
Plaintiff has prayed for directions against defendant to deliver up all books, stationary, furniture, bills, books, printed material and related items bearing the trademark "BACHPAN" and "BACHPAN...a Play School". Plaintiff has also prayed for damages of Rs. 5,00,000/- against defendant on account of acts of infringement in respect of its Mark and its wrongful use by defendant for causing loss of goodwill and reputation of plaintiff no.2.
2. It is necessary to take note, albeit briefly, of the background facts as mentioned in the Plaint.
● Plaintiff is a company and the instant suit is filed through Mr. N.K. Jain, its Director duly authorized by way of Board Resolution dated 22.05.2012. Plaintiff in the year 2002 has started Play School Education under its brand name of "BACHPAN" and "BACHPAN...a Play School". Plaintiff further introduced formal school education under its brand CS (COMM) No. 2019/2019 M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.2 of 10 name "Academic Height's Public School" (in short as "AHPS"). These brand names/trade names of the plaintiff are duly registered with the Registrar of Trade Marks, Delhi. The educational activities, play schools and formal schools of plaintiff are run under the said brand names and distinctly identified with the plaintiff in the field of education.
● Plaintiff developed a Play School Concept and methodology named as "BACHPAN...a Play School" and therefore introduced a unique method to let children develop and learn their mental and physical skills in a playful atmosphere. Plaintiff also opened up its Franchise for its play schools in the year 2002 and invited Franchisees all over India for running Play Schools of the plaintiff.
● The plaintiff's Mark "BACHPAN" and "BACHPAN...a Play School" are registered with Registrar of Trade Mark under various classes as per details mentioned in para no.6 of the plaint. Plaintiff's services under the Trade Mark "BACHPAN" and "BACHPAN...a Play School" are extensively advertised in the Print and Audio Visual Media. The plaintiff thus has made substantial inputs and expended money in acquiring the name and goodwill and establishing its infrastructure and chain of Franchisees all over India by spending lakhs of rupees. The year-wise tabulated details of CS (COMM) No. 2019/2019 M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.3 of 10 money expended in advertising over quantum of Sales and Fee Receipts is detailed in para no.8 of the plaint. Plaintiff's schools under the Trade Name "BACHPAN" and "BACHPAN...a Play School" have become distinctive with the business and services of plaintiff in the field of Play School Education.
● It is alleged that defendant Mr. Sanjeet Choudhary is the former franchisee of the plaintiff who is unauthorizedly and unlawfully running a play school under the identical name as that of registered trademark of plaintiff i.e. "BACHPAN" and "BACHPAN...a Play School" without permission or authorization of plaintiff. Defendant is running the said play school from his premises at Choudhary Bhandar, Cart Sarai Road, Upper Bazar, Ranchi, Jharkhand-834001. ● Defendant had approached the plaintiff in the year 2015 for taking out the Franchisee to run a play school under the brand name of the plaintiff. A Franchisee Agreement dated 27.01.2015 was executed between the plaintiff and defendant. The defendant paid a Royalty fees to the plaintiff as per Agreement uptill July 2017. Thereafter, defendant has failed/neglected to pay the said royalty to the plaintiff despite repeated requests of plaintiff. Plaintiff sent reminders/letters to the defendant on 28.10.2017 and 02.12.2017 demanding such outstanding royalty. Through these letters, plaintiff wrote CS (COMM) No. 2019/2019 M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.4 of 10 that defendant was lacking sincerity and professionalism. Defendant was also issuing fake receipts to the students to take admission in his school. Due to breaches and omissions of the defendant, plaintiff company sent a Termination Letter dated 13.02.2018 and severed all Franchisee relations with defendant.
● Despite the Termination Letter and Reminder letter as also demand from defendant to hand over/return entire material alongwith making payment of arrears and asking him not to carry on any business under the brand name of plaintiff, defendant has not desisted himself from the same and it continuing to use the brand name/Trade Mark of plaintiff. In the month of September, 2018, during visit of plaintiff's official Mr. Dinesh in the state of Jharkhand, plaintiff came to know that defendant was illegally running his play school under the identical name "BACHPAN" and "BACHPAN...a Play School" thereby causing a confusion and deception to general public; Hence the present suit.
3. Summons of the suit were served upon the defendants. The defendant did not appear despite service as is evident from the proceeding sheets. Vide order dated 09.10.2021, the defendant was proceeded ex-parte.
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4. The plaintiff in support of its case has examined the Director Mr. N.K. Jain as PW-1 who has tendered his affidavit as Ex.PW-1/A and proved the following documents:-
a) Original extract of Board Resolution dated 22.05.2022 is Ex.PW1/1;
b) Copy of two ISO Certificate of Registration of the plaintiff company is Ex.PW1/2 (colly);
c) Copy of Certificate of Merit of the plaintiff company is Ex.PW1/3;
d) Copy of Certificate of Participation in Mumbai International Book Fair, 2002 is Ex.PW1/4;
e) Copy of Trade Mark Certificates and Legal Proceedings Certificates are Ex.PW1/5 (colly);
f) Copies of ITR Acknowledgments (including the computation of Income, Balance Sheets, Profit and Loss Account etc.) of the plaintiff company for the assessment years 2015-2016, 2016-2017 and 2017-2018 which are Ex.PW1/6 (colly);
g) Copy of invoices of advertisement issued to S.K.Education Pvt. Ltd. is Mark A (colly);
h) List of Play Schools of the Franchisee in States of India is Ex.PW1/8;
i) Copy of Franchisee Agreement dated 27.01.2015 is Ex.PW1/9 (colly);
j) Copy of letter dated 28.10.2017 sent by plaintiff to the defendant alongwith copy of postal receipts are Mark B;CS (COMM) No. 2019/2019
M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.6 of 10
k) Original letters dated 02.12.2017 and 20.01.2018 sent by plaintiff to the defendant alongwith the original postal receipts are Ex.PW1/11 (colly);
l) Original Termination Letter dated 13.02.2018 alongwith its original postal receipt is Ex.PW1/12;
m) Original Reminder Letter dated 09.03.2018 along-with original postal receipts is Ex.PW1/3;
n) Coloured printouts of the photographs of the play school run by the defendant at Ranchi, Jharkhand under Identical/deceptively similar mark of "Bachpan..... a Play School' is Ex.PW1/4 (Colly);
o) Original fee receipt issued by the defendant of the play school run at Ranchi, Jharkhand under identical/deceptively similar Mark of "Bachpan ..... a Play School' is Ex.PW1/5.
5. I have heard submissions as addressed by Ld. Counsel for Plaintiff and perused the entire material on record. Plaintiff has proved that a Franchise Agreement Ex.PW-1/9 was executed by plaintiff company with defendant, wherein to run Play School by defendant under the registered brand name of plaintiff. The defendant, however, paid the Royalty Fee only uptill July, 2017 to plaintiff as per Agreement and Termination Letters dated 13.02.2018 Ex.PW-1/12 and Ex.PW-1/13 were served upon defendant thereby terminating and severing all its franchisee relations by plaintiff with defendant. The record establishes that the defendant is adopting and CS (COMM) No. 2019/2019 M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.7 of 10 using the Trade Mark BACHPAN. for running his own play school and thereby creating deception and confusion in the minds of parents and general public by projecting as if the Mark and the Play School is still connected with plaintiff brand. Such misrepresentation is causing confusion to the minds of parents who intend to get their children enrolled in the Play School.
6. The defendant has not appeared to contest the matter and has been proceeded ex-parte. The defendant thus has chosen to stay away from proceedings without any justifiable cause. The record shows that plaintiff has expended a good sum of money on promotion and advertising of its brand and thus, the brand name/Mark has a considerable market and popularity. The case of plaintiff has gone un-challenged, un-rebutted and duly corroborated by documents. This Court has no reason to disbelieve the version of plaintiff company that the defendant, being in same field of play school education is misusing the reputation and goodwill of the plaintiff company's Mark "BACHPAN" and "BACHPAN...a Play School". Applying priori and posteriori reasoning, this Court is satisfied that plaintiff has been able to prove its case against defendant. The suit so far reliefs of injunction are concerned, deserves to be decreed.
7. As regards the relief of Damages, plaintiff has prayed for award of damages of Rs. 5,00,000/-. There is no evidence of the CS (COMM) No. 2019/2019 M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.8 of 10 alleged losses sustained by plaintiff which could be quantified. However, in view of the fact that defendant is guilty of dishonestly adopting the brand name of plaintiff company and has chosen to deliberately stay away from the proceedings despite service and knowledge of the same, I am of the view that plaintiff is entitled to notional damages and costs.
Relief
8. The suit of the Plaintiff's Company stands decreed in the following manner:-
(a) A decree of permanent injunction is passed in favour of plaintiff restraining the defendant or their associates from running a play school under the brand name "BACHPAN" and "BACHPAN...a Play School" or any other name that is deceptively similar to the plaintiff's brand name "BACHPAN" and "BACHPAN...a Play School" and further restraining them from infringing plaintiff's brand name/mark.
(b) Defendant or their associates are directed to deliver to the plaintiff company or stationery, furniture, admission kits, printed material and related material bearing Mark "BACHPAN" and "BACHPAN...a Play School" forthwith.
(c) Plaintiff is entitled to notional damages of Rs.1 lakh to be paid by defendant on account of the acts of their infringement of Marks of plaintiff/their wrongful use causing loss to the goodwill and reputation of the plaintiff company.CS (COMM) No. 2019/2019
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(d) The cost of the suit alongwith pleader's fee is also awarded in favour of the Plaintiff and against the defendant.
Decree-sheet be prepared and file be consigned to Record Room after due compliance.
Announced in open
court on 27.10.2023 (Ravinder Bedi)
District Judge (Commercial Court)-12
Central District, Tis Hazari Courts /Delhi
CS (COMM) No. 2019/2019
M/s. S.K. Educations Pvt. Ltd. vs. Mr. Sanjeet Choudhary Page no.10 of 10