El Baik Food Systems Co. S.A vs Arsalan Wahid Gilkar & Anr on 4 June, 2021

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Delhi High Court - Orders

El Baik Food Systems Co. S.A vs Arsalan Wahid Gilkar & Anr on 4 June, 2021

Bench: Sanjeev Narula

$~7
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(COMM) 283/2021
        EL BAIK FOOD SYSTEMS CO. S.A.                              ..... Plaintiff
                           Through:      Mr. Saif Khan, Mr. Shobhit Agrawal
                                         & Mr. Deepank Singhal, Advocates.

                           versus

        ARSALAN WAHID GILKAR & ANR.                              ..... Defendants
                    Through: None.

        CORAM:
        HON'BLE MR. JUSTICE SANJEEV NARULA
                ORDER

% 04.06.2021 [VIA VIDEO CONFERENCING] I.A. No. 7388/2021 (for exemption)

1. Allowed, subject to just exceptions.

2. The application stands disposed of.

I.A. No. 7389/2021 (for seeking exemption from filing attested/apostilled affidavit)

3. The present application under Section 151 of the Code of Civil Procedure, 1908 (in short 'CPC') on behalf of the Plaintiff seeks exemption from filing attested/apostilled affidavits.

4. The Plaintiff submits that due to the COVID-19 pandemic situation and resultant restrictions, they are unable to get the attested/apostilled affidavits. Due to the urgency of the matter, the Plaintiff has filed the present suit without the attested/apostilled affidavits.

CS(COMM) 283/2021 Page 1 of 8

5. The application is allowed, subject to the Plaintiff filing the exempted documents within two weeks from the day the lockdown restrictions imposed by the Government of NCT of Delhi are lifted and the facility for attestation of affidavits is resumed.

6. The application stands disposed of.

I.A. 7387/2021 (u/Section 149 r/w Section 151 CPC for seeking extension of time in filing of Court fee and one-time process fee)

7. The present application under Section 149 of the CPC on behalf of the Plaintiff seeks extension of time in filing of court fee and process fee.

8. The Plaintiff submits that due to the current COVID-19 pandemic situation and resultant restrictions, he is unable to procure the necessary court fee stamps. Due to the urgency of the matter, the Plaintiff has filed the subject suit without the court fee and process fee.

9. The application is allowed, subject to the Plaintiff filing the requisite court fee and process fee within two weeks from the day the lockdown restrictions imposed by the Government of NCT of Delhi are lifted and the facility for issuance of court fee stamps is resumed.

10. The application stands disposed of.

I.A. 7386/2021 (u/O XI Rule 1(4) of CPC for seeking leave to file additional documents)

11. The present application seeks leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (in short 'Commercial Courts Act').

12. The 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.

CS(COMM) 283/2021 Page 2 of 8

13. Accordingly, the application stands disposed of.

CS(COMM) 283/2021

14. Let the plaint be registered as a suit.

15. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statements shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statements, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statements shall not be taken on record.

16. Liberty is given to the Plaintiff to file replications within 15 days of the receipt of the written statements. Along with the replications, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replications shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

17. List before the Joint Registrar for marking of exhibits on 6th August, 2021. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

18. List before the Court on 10th September, 2021.

I.A. 7385/2021 (u/O XXXIX Rules 1 and 2 r/w Section 151 of the Code of Civil Procedure, 1908 for ad interim injunction)

19. The Plaintiff has filed the present suit seeking permanent injunction, restraining infringement of registered trademarks, infringement of copyright, passing off, damages, and delivery up, etc. CS(COMM) 283/2021 Page 3 of 8

20. The case as set out in the Plaint is that the Plaintiff company is popularly known as 'ALBAIK' group, and its franchisees are known as 'ALBAIK' chain of restaurants. 'ALBAIK' is an Arabic mark with 'ELBAIK' as its English equivalent transliteration with identical pronunciation.

21. In the year 1986, the Plaintiff registered the arbitrary mark 'ALBAIK' in Saudi Arabia and re-branded its business under the name and style of 'ALBAIK'. The Plaintiff's flagship brands are ELBAIK, ALBAIK, ELBAIK with a hat device, ALBAIK chick logo and ALBAIK with Arabic and its logo, (in short "ALBAIK trademarks"). Since 1986, the Plaintiff has grown 'ALBAIK' into a successful business with more than 125 high volume restaurants in Saudi Arabia, Egypt, Bahrain, Philippines, and the UAE including 3 restaurants in the Mecca district. The Plaintiff commenced brief operations in India between the period from 2017 to 2020 by opening its first 'ALBAIK' restaurants in Dwarka, New Delhi in 2017 followed by another one in Indirapuram-Ghaziabad, Delhi-NCR, through a franchisee arrangement. The said operations continued till early 2020, whereafter, on account of the COVID-19 pandemic situation and lockdowns imposed resulted in shutting down of the restaurants and the said business could not continue. It is contended that the Plaintiff is currently in the process of preparing to re-start its operations. The Plaintiff has secured several registrations in India for various 'ALBAIK' and 'ELBAIK' trademarks and devices. The details of the registration that are valid and subsisting are given as under: -

CS(COMM) 283/2021 Page 4 of 8

S. NO. TRADEMARK REGISTRATION REGISTRATION CLASS (DEVICES) NUMBER NUMBER

1. 778166 13/11/1997 29

2. 778169 13/11/1997 29

3. 1237718 17/09/2003 42

4. 1237719 17/09/2003 42

5.

                                      1668543       25/03/2008        16, 30



      6.
                                      1668545       25/03/2008        16, 29,
                                                                      30, 43
               (Device of Hat in
               Hand)
      7.
                                      1668546       25/03/2008       16, 29,
                                                                      30, 43

22. Mr. Saif Khan, learned counsel for the Plaintiff submits that in January 2021, the Plaintiff, while carrying out its regular due diligence over trademark public search, came across the trademark Application No. CS(COMM) 283/2021 Page 5 of 8 4798628 under Class 29 for the device mark 'ALBAIK INTERNATIONAL' on 'proposed to be used' basis applied in the name of Defendant No. 1' s proprietorship concern 'Elbaik International Food Systems Co.'. From the trademark Application, the Plaintiff noted that Defendant No. 1 had provided an e-mail address-

'[email protected]'. Thereafter, on further enquiries into the entity named- 'Saudi Compare Group', it was revealed that it is engaged in a similar business as that of the Plaintiff's and is also offering franchises of various famous brands of Saudi Arabia all across India, including that of the Plaintiff's 'ALBAIK' restaurants through it's website- 'www.saudicomparegroup.com', although the Plaintiff has never given any authorization for the same. Mr. Khan has also drawn the attention of the Court to the screenshots of the abovementioned website to demonstrate that the Defendants have brazenly used the Plaintiff's trademark and logo and are claiming that they can offer franchises for the restaurants under the 'ALBAIK'/ 'ELBAIK' brand. He submits that the 'ALBAIK trademarks' are being unlawfully displayed therein to give an impression as if the services being offered by the Defendants are originating from the Plaintiff.

23. Mr. Khan states that these infringing acts of the said entity, are writ large as it is found to be charging royalty fee at the rate of 5% of gross revenue or a minimum of Rs. 75,000/- per month, whichever is greater. Further enquiries have revealed that a Facebook page of 'ELBAIK International Food Systems Co.' is also engaged in similar activity as the 'Saudi Compare Group' of providing fake franchises of the Plaintiff's 'ALBAIK' restaurants, using the Plaintiff's trademark, in various states CS(COMM) 283/2021 Page 6 of 8 across India, including within the territorial jurisdiction of this Court. It was further revealed that the contact information available on the said page mentioned the website 'www.saudicomparegroup.com' and email ID '[email protected]' which evidences that the two entities i.e., Saudi Compare Group and M/s ELBAIK International Food Systems Co. are connected and working in collusion with each other in duping innocent members of the trade by misrepresenting themselves as an associate concern of the Plaintiff entity. Mr. Khan further clarifies that subsequently, on a complaint being made to Facebook, the infringing page was taken down.

24. Further, Mr. Khan submits that the acts of the Defendants are also violative of the Copyright Act, 1957 (in short 'the Act'). The Plaintiff's various 'ALBAIK' device/logo marks are original art-works belonging to the Plaintiff and thus, the same constitute 'artistic works' under Section 2(c) of the Act and must be protected. The reproduction of the 'ALBAIK' device/logo marks by the Defendants is without any license or authorization from the Plaintiff and the act of the Defendants amounts to infringement of the Plaintiff's copyright.

25. In view of the above, the Plaintiff has established a prima facie case in its favour. The balance of convenience also lies in favour of the Plaintiff and in case the Defendants are not restrained by an ex-parte injunction, it is likely to cause an irreparable loss to the Plaintiff as otherwise the Defendants would defraud innocent members of the trade by offering fake franchises.

26. Accordingly, till the next date of hearing Defendant Nos. 1 and 2, their principal officers, proprietor/partners, servants, agents, their affiliates, subsidiaries, distributors, and all others acting for and on their behalf are CS(COMM) 283/2021 Page 7 of 8 restrained from, in the course of trade, using the mark 'ALBAIK', 'ELBAIK', Chick logo/device etc., and/or any other mark/name/device/logo which is identical or deceptively similar to the 'ALBAIK trademarks' of the Plaintiff, including as part of domain, e-mail ID, business papers or in any manner whatsoever, and from offering, soliciting, circulating any material, engaging etc. with the members of public for issuing any 'ALBAIK' franchises and from reproducing and/or putting to use in any manner the impugned mark/artistic work or any other artistic work/device/logo comprising of the Plaintiff's artistic works that may amount to infringement of Copyright.

27. Let the provisions of Order XXXIX Rule 3 CPC be complied with within a period of one week from today.

28. List before the Joint Registrar on 6th August, 2021.

29. List before the Court on 10th September, 2021.

SANJEEV NARULA, J JUNE 4, 2021 as CS(COMM) 283/2021 Page 8 of 8

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Delhi High Court - Orders