* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 3rd NOVEMBER, 2014
DECIDED ON : 25th NOVEMBER, 2014
+ CS (OS) 734/2013
VIRGIN ENTERPRISES LTD. & ANR. ..... Plaintiffs
Through : Mr.Amitabha Sen, Advocate with
Ms.Malyashree Sridharan &
Mr.Nihit Nagpal, Advocates.
VERSUS
VIRGIN PARADISE AIRLINES TRAINING PVT. LTD.
..... Defendant
Through : None.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The plaintiffs have instituted the present suit for permanent injunction to restrain the defendant from infringing their trademark and passing off their services as that of his. Briefly stated, the facts set up in the plaint are as under :
2. The plaintiff No.1 - Virgin Enterprises Limited is a member of the Virgin Group of Companies. It was originally established by Sir CS (OS) 734/2013 Page 1 of 8 Richard Branson in 1970. It is a company incorporated in England and Wales and is a member of the Group of Companies collectively known as the Virgin Group of Companies. Plaintiff No.2 - Virgin Mobile India Pvt. Ltd. having its registered office at 2A, Old Ishwar Nagar, Main Mathura Road, New Delhi, is a licencee of the plaintiff No.1. The plaintiffs were licenced to use the 'Virgin' name. It was originally established by its founder and chairman - Sir Richard Branson in the United Kingdom in 1970. Since then, the 'Virgin Group' has grown significantly in terms of its size, geographical reach and the number of industries. The 'Virgin Group' has traded under the 'Virgin' name since 1970 and continues to do so. It has built up a considerable amount of reputation and goodwill in the 'Virgin' name through its varied activities. Till date, the Group has created more than 300 branded companies worldwide, employing approximately 50,000 people in 30 countries. The plaintiff No.1 owns over 3,000 trademark applications and registrations worldwide for the marks 'Virgin' and 'Virgin Signature Logo' in over 150 countries, including India, spanning across all the 45 classes of goods and services. The mark 'Virgin' was first registered by the plaintiffs on April 11, 1973 in the United Kingdom. Estimated total worldwide turnover figures for the 'Virgin Group' for the years 1995 to 2010 have been described in para CS (OS) 734/2013 Page 2 of 8 No.12 of the plaint. It is further averred that 'Virgin' brand is consistently recognized for its distinctive nature and reputation spanning across numerous industry sectors. It has been consistently ranked in the top ten of most successful, innovative, admired and respected brands by independent survey companies. Information about these surveys has been detailed in para No.15 of the plaint.
3. It is further averred that the present suit concerns the plaintiff No.1's statutory and common law rights over their trademark 'Virgin' as well as for the violation of such rights by the defendant by adoption and use of deceptively identical name and colour combination for its company 'Virgin Paradise Airlines Training Pvt. Ltd.'. The plaintiffs have given a comprehensive list of all the registered marks of the plaintiff No.1 in India in para No.20 of the plaint.
4. Further case of the plaintiff No.1 is that it came across an identical and deceptively named company 'Virgin Paradise Airlines Training Pvt. Ltd.'in May, 2009. The said name for incorporation has been used by the defendant with malafide intent. The pronounceable, prominent and memorable feature of the first word of the name of the company incorporated by defendant is identical and deceptive to those of the celebrated trademark 'Virgin' of the plaintiff No.1. The similarity of CS (OS) 734/2013 Page 3 of 8 the area of service offered by defendant and the services offered by the plaintiff No.1 i.e. aviation sector make the mark 'Virgin' more prone to confusion and deception to public.
5. Plaintiff No.1's further case is that time and again defendant has been requested to drop the word 'Virgin' from the company. Letter dated 28.05.2009 was written to the defendant requesting deletion of the name 'Virgin' from their company's name. On 30.06.2009, a letter dated 20.06.2009 was received from the defendant asking plaintiff No.1 the copies of Virgin's trademark registrations in India. The necessary information was given by a letter dated 06.07.2009. Again, on 14.07.2009, a letter dated 07.07.2009 was received from the defendant counsel out- rightly denying the plaintiff No.1's request. There were conversations for amicable settlement of the matter but to no effect. Hence the present suit.
6. Summons of the suit and notice of the stay application were issued to the defendant. Ex-parte restraint order was passed in favour of the plaintiffs by an order dated 23.04.2013, whereby the defendant, its employees, agents, representatives, servants and assigns were restrained from using any of the 'Virgin' marks or plaintiffs' logos or any other mark, domain name, company name deceptively similar to the plaintiffs' marks. Despite service of the process, the defendant opted not to enter CS (OS) 734/2013 Page 4 of 8 appearance. The defendant was proceeded ex-parte by an order dated 25.10.2013. On 19.02.2014, the ex-parte ad interim order dated 23.04.2013 was made absolute till the disposal of the suit.
7. The plaintiffs examined PW-1 (Dr.Amitabha Sen) in his ex- parte evidence. PW-1 (Dr.Amitabha Sen) proved the affidavit of evidence (Ex.PW-1/A). He also proved various documents (Ex.PW-1/1 to Ex.PW- 1/15) in support of his case.
8. I have heard the learned counsel for the plaintiffs and have examined the file. The evidence filed by the plaintiffs has gone unrebutted and unchallenged. The contents of the plaint have been proved by PW-1 (Dr.Amitabha Sen) and there are no valid reasons to disbelieve the unchallenged testimony of PW-1 (Dr.Amitabha Sen). Adverse inference is to be drawn against the defendant for not appearing and contesting the suit.
9. From the un-challenged testimony of the plaintiffs, it can be concluded that the use of trademark 'Virgin' being adopted and used by the plaintiffs for the last more than 35 years in relation to aviation services by the defendant for its services is bound to cause confusion and deception in the mind of the public at large. No justification has been CS (OS) 734/2013 Page 5 of 8 given by the defendant for the use of similar mark of the plaintiffs for its airline services which has distinctive character and composition.
10. The marks 'Virgin' and 'Virgin Signature Logo' are used widely throughout the world by the plaintiffs in various fields through its licences. The goods and services bearing the 'Virgin' trade and service marks are exclusively associated with the plaintiffs. It is a 'well known trademark' and 'famous trademark' as defined under Section 2(1)(zg) of Trade Marks Act. The adoption of the above trade / service mark 'Virgin' by the defendant without any justification or permission amounts to gross infringement of the intellectual property rights of the plaintiff No.1. The use of the mark 'Virgin' by the defendant is bound to cause confusion, deception and mistake amongst the public. It would tend to suggest a relationship between the defendant and the plaintiffs which in fact it does not so exist. The use of the similar / identical mark by the defendant would adversely affect the plaintiffs' goodwill and reputation. The use of the mark by the defendant constitutes violation of the plaintiffs legal rights amounting to infringement and passing off.
11. The defendant was requested through various correspondence to drop the word 'Virgin'. Despite issuance of the ex-parte stay order, it appears that the defendant has not dropped the word 'Virgin'. CS (OS) 734/2013 Page 6 of 8
12. The plaintiffs are entitled thus for the injunction prayed for.
13. The next aspect to be considered is the issue of damages on account of infringement of trademark of the plaintiffs and also for loss of sales and reputation. The defendant has deliberately stayed away from the present proceedings as a result of which an enquiry into the accounts of the defendant for determination of the charges cannot take place.
14. In 'Microsoft Corporation vs. Deepak Raval', MIPR 2007 (1) 72, this Court observed that in our country the Courts are becoming sensitive to the growing menace of piracy and have started granting punitive damages even in cases where due to absence of defendant, the exact figures of sale made by them under the infringing copyright and / or trademark, exact damages are not available.
15. In 'Larsen and Toubro Limited vs. Chagan Bhai Patel', MIPR 2009 (1) 194, this Court has 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.
16. In 'Time Incorporated vs. Lokesh Srivastava and anr.', 2005 (30) PTC 3 (Del), it was observed that it was time the Courts dealing actions for infringement of trade marks, copyrights, patents, etc. should not only grant compensatory damages but also award punitive damages CS (OS) 734/2013 Page 7 of 8 with a view to discourage and dishearten law-breakers who indulge in violations with impunity out of lust for money so that they realize that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them.
17. In the light of above discussion, I am of the view that the plaintiffs have proved its case against the defendant and are entitled for the decree prayed for. Accordingly, the suit is decreed with costs in favour of the plaintiffs. The defendant, its employees, agents, representatives, servants and assigns are restrained from using any of the 'Virgin' marks or logos or any other mark of the plaintiffs or domain name and company name deceptively similar to that of the plaintiffs. The plaintiffs shall also be entitled to damages to the tune of ` 1 lac.
18. Decree-sheet be prepared accordingly.
(S.P.GARG) JUDGE NOVEMBER 25, 2014 / tr CS (OS) 734/2013 Page 8 of 8