$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28.08.2017
+ CS(COMM) 825/2016
TRIUMPHANT INSTITUTE OF MANAGEMENT
EDUCATION PVT LTD ..... Plaintiff
Through:
versus
WWW.TIMESEDUCATION.CO & ORS ..... Defendants
Advocates who appeared in this case:
For the Plaintiff : Ms. Bitika Sharma and Mr. Lakshay Kaushik, Advs.
For the Defendant : Mr. Ankit Relan, Ms. Ekta Sharma and Ms. Ridhima, Advs.
for D-4
Mr. Sagar Chandra, Mr. Ankit Rastogi and Ms. Aastha
Bhasin, Advs. for proposed defendant no. 5
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
28.08.2017 SANJEEV SACHDEVA, J. (ORAL) I.A. 3017/2017 (on behalf of Plaintiff under Order VI rule 17 CPC) & I.A. 3019/2017 (on behalf of Plaintiff under Order I rule
10)
1. The plaintiff has filed the suit seeking a restraint on the ========================================================== I.A. 3017/2017 & I.A. 3019/2017 in CS(COMM) 825/2016 Page 1 of 8 defendant from unauthorized and illegal adoption and use of the plaintiff registered trademark T.I.M.E. and the registered domain name 'TIME4EDUCATION.COM' by defendant no. 1 by adopting, using and registering an identical and deceptively similar domain name i.e. www.timeseducation.co.
2. It is contended that the plaintiff is in the service of providing education and coaching classes. The plaintiff has a registered domain name 'TIME4EDUCATION.COM'.
3. It is contended that someone had got registered a domain name 'www.timeseducation.co' which is deceptively similar to the domain name of the plaintiff.
4. It is contended that when the plaintiff filed the suit, plaintiff was not aware of the person who had got the said domain name registered. All that was available was a telephone number.
5. It is submitted by learned counsel for the plaintiff that the Cyber Cell of the Delhi Police has subsequently reported that the telephone number belongs to 'Think and Learn Pvt. Ltd. (Byju's)', the ========================================================== I.A. 3017/2017 & I.A. 3019/2017 in CS(COMM) 825/2016 Page 2 of 8 proposed defendant No. 5.
6. It is submitted that the proposed defendant is in the same field as that of the plaintiff i.e. providing coaching and educational services to students.
7. It is contended that the proposed defendant had got the domain name - 'timeseducation.co' registered so as to ride upon the reputation and goodwill of the plaintiff and take benefit there from.
8. It is in the above circumstances, plaintiff seeks impleadment of proposed defendant 'Think and Learn Pvt. Ltd.' (Byju's) and the consequential amendments to the Plaint.
9. Learned counsel submits that in view of the interim order dated 15.07.2016, whereby the use of the said domain name was restrained, the proposed defendant stopped using the domain name and recently the domain name was available for purchase and the plaintiff has now purchased the same.
10. It is contended that when the suit was filed, the plaintiff was not ========================================================== I.A. 3017/2017 & I.A. 3019/2017 in CS(COMM) 825/2016 Page 3 of 8 aware that it is the proposed defendant who was using the domain name 'www.timeseducation.co' and only on the report of the cyber cell , the name of the proposed defendant surfaced and as such the proposed defendant is a necessary and proper party.
11. Learned counsel appearing for the proposed defendant submits that there is nothing to associate the proposed defendant with the said domain name. He submits that though the phone number based on which the application has been filed does belong to the proposed defendant, however, prior to the acquisition of the said number, inquiries have revealed, that the number was owned by several other entities or persons.
12. He submits that nothing apart from the number associates the proposed defendant with the said domain name. He further submits that even as per the showing of the plaintiff, the domain name has now been purchased by the plaintiff and the cause of action does not survive any further.
13. The plaintiff has prima facie shown that the proposed defendant ========================================================== I.A. 3017/2017 & I.A. 3019/2017 in CS(COMM) 825/2016 Page 4 of 8 had an association with the impugned domain name 'www.timeseducation.co' through the telephone number, which admittedly belongs to the proposed defendant.
14. The defence of the defendant that the said telephone number was earlier belonged to other persons/entities or that there was no connection of the proposed defendant with the said domain are pleas on merit of the contention of the plaintiff, which are not required to be examined at this stage.
15. The merits of the claim of the plaintiff or the defence of the defendant have not to be considered at the time of considering the application for amendment.
16. In view of the admitted association of the proposed defendant with the telephone number connected with the impugned Domain name, the proposed defendant is clearly a necessary and proper party to the Suit and presence of the proposed defendant is necessary for the purposes of truly and effectively deciding the issues that arise in the Suit.
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17. The plaintiff as well as the proposed defendant is in the same field of business i.e. providing education services and running coaching classes. Furthermore, as per the cause of action paragraph in the plaint, the claim of the plaintiff even if filed today would be within limitation from the date the cause of action has arisen.
18. Furthermore, in order to avoid multiplicity of litigation, it would be expedient to allow the application and to implead the proposed defendant.
19. Accordingly, both the application for impleadment of the proposed defendant and the application seeking consequential amendments to the plaint are also allowed. Proposed defendant No. 5 'Think and Learn Pvt. Ltd. (Byju's)' is impleaded as defendant No. 5. The Plaintiff is also permitted to amend the plaint as stated in the application.
20. The applications are accordingly allowed. CS(COMM) 825/2016
21. Let the amended memo of parties as well as the amended plaint ========================================================== I.A. 3017/2017 & I.A. 3019/2017 in CS(COMM) 825/2016 Page 6 of 8 be filed within a period of one week.
22. Written statement to the amended plaint be filed by the defendants as well as by the newly added defendant within the statutory period.
23. The newly added defendant shall file the original documents along with the written statement. Replication to the written statement be filed within a period of two weeks.
24. Learned counsel for plaintiff submits that since the plaintiff has already purchased the domain name 'timeseducation.co', the cause of action qua defendants No. 2 and 3 does not survive any further and she seeks deletion of defendants No. 2 and 3 from the array of parties.
25. Accordingly, defendants No. 2 and 3 are deleted from the array of parties. In the amended Memo of Parties, in front of the names of Defendants No. 2 and 3, the Plaintiff shall make an endorsement that they have been deleted from the array of parties by the order of today's date.
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26. The parties shall file their affidavits of admission/denial of documents within two weeks of the filing of replication.
27. List before the Joint Registrar for marking exhibits, if any, on the documents on 09.11.2017.
28. List before Court on 19.01.2017 for framing of issues. I.A. 7324/2017 (application on behalf of Defendant No. 4 under Order XIII-A CPC)
29. Issue notice. Notice is accepted by learned counsel for the plaintiff who prays for time to file reply.
30. Let reply be filed within four weeks. Rejoinder, if any, be filed within two weeks.
31. List before Court on 19.01.2017 SANJEEV SACHDEVA, J AUGUST 28, 2017 'rs' ========================================================== I.A. 3017/2017 & I.A. 3019/2017 in CS(COMM) 825/2016 Page 8 of 8