Ozone Spa Pvt. Ltd. vs M/S. Ozone Club
2010 Latest Caselaw 143 Del

*            HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 10586/2009 in CS (OS) No. 1528/2009

Ozone Spa Pvt. Ltd.                                           ...Plaintiff
                      Through    : Ms. Pratibha M. Singh and
                                   Ms. Archana Sachdeva, Advs.

                                 Versus

M/s. Ozone Club                                          ...Defendant
                      Through    : Mr. Mohan Vidhani and Mr.
                                   Rahul Vidhani, Advs.

Reserved on : December 23, 2009
Decided on : January 13, 2010

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     Yes

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported
   in the Digest?                                      Yes

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit for permanent injunction

restraining passing off the registered trade mark, unfair competition,

dilution and damages and rendition of accounts etc. The brief facts are

that on 7th June, 1994 the company i.e. M/s. Taj Resorts Pvt. Ltd. was

incorporated. Subsequently on 6th January, 2003 its name was changed

to „Ozone Spa Pvt. Ltd.‟. The plaintiff company is a premier boutique

health Spa and it adopted the mark „Ozone‟ in relation to health services

in May 2001. It launched its first Health Centre and Spa under the brand

name „Ozone‟ on 26th October, 2002 and changed its name in 2003. The

trade mark „Ozone‟ which also forms a dominant part of the corporate

name has been in use continuously since its adoption in 2001. It has

already established itself as a one of its kind fitness centre, the members

of which include eminent personalities like Ms. Sania Mirza, Ms. Ekta

Chaudhary, Ms. India Universe 2009, well known model Mr. Inder

Mohan Sudan etc. The plaintiff has already established branches in

Haryana, Gurgaon, Chandigarh and Bangalore and it has planned to

commence operations in Ludhiana, Indore and Ahmadabad. The plaintiff

has established four branches of „Ozone‟ in Delhi i.e. at Defence

Colony, Palm Country Club, Gurgaon, Delhi Lawn Tennis Association

and at Deepak Plaza Building, Rohini.

2. The services and facilities enumerated by the plaintiff

company are as under:-

     (i)       Cardio equipment ......
     (ii)      Strength equipment to tone and strengthen the body.
     (iii)     Steam, sauna, massages, showers, changing cubicles and a
               vanity arc for women.
     (iv)      Aerobics, yoga, body sculpting and specific strength
               workouts.
     (v)       Luxurious spa suites which offer advanced relaxation
               therapies....
     (vi)      Body composition analysis.
     (vii)     Scientific nutritional evaluation and diet counseling.
     (viii)    In house care and guidance by physiotherapist, alongwith
               medical counseling by doctors.
     (ix)      Wi-Fi-Wireless Internet access available free for all
               members.

3. The plaintiff has stated the turnover of the company from

2002 to 2009 in Para 10 of the plaint. The plaintiff has submitted to

have spent approximately Rs. 74 lakhs on account of advertising and

business promotion under the mark „Ozone‟ in various newspapers and

journals during the said period. The details of the expenses are given in

Para 11 of the plaint. It is submitted that the plaintiff, since the time it

commenced operations, has been a pioneer in the health industry. The

plaintiff in fact boasts of top-notch designs with studioesque appeal

where each member is assigned a personalized workout schedule,

closely monitored by trained staff. The USP of the gym is the state of

the art equipment, sauna, Swedish massage and group activities that

include spinning, pilates, kick-boxing and yoga.

4. The plaintiff is the registered proprietor of the trade mark

„Ozone‟ in Classes 16, 30, 32, 33 and 42. The plaintiff also has

registration of copyright in the said mark, the details of which are given

in Para 15 of the plaint. The plaintiff‟s application for registration of the

trade mark „Ozone‟ in class 41 in relation to health club related services

is pending before the trade mark registry as it is opposed by the

defendant.

5. According to the plaintiff, in March 2007 the plaintiff became

aware of the defendant‟s mark when the same was advertised in the trade

mark journal. Immediately on 22nd March, 2007 an opposition to the

same was filed by the plaintiff. The plaintiff via correspondence was

informed of the opposition filed by the defendant against the plaintiff‟s

mark. However, the plaintiff has as of now not been served with a copy

of the said notice of opposition. The opposition proceedings are pending

before the trade mark registry. In order to protect its rights in the mark

„Ozone‟ the plaintiff has issued a legal notice dated 26th March, 2009.

The defendant sent its reply dated 13th April, 2009 to the legal notice of

the plaintiff.

6. It is submitted that the mala fide intentions of the defendant

are evident from the fact that it has adopted an identical name for health

services and/or cognate and allied services that it provides. It is stated by

the plaintiff that the services provided by the defendant under the

impugned mark are health related, the details of which are given in the

plaint i.e. swimming pool, Talwalkers fitness centre, lawn tennis,

badminton, skating, restaurant and banquet facilities, Billiards and

archery centre.

7. The plaintiff has also opposed the application for registration

of the trade mark filed by the defendant before the filing of the suit. The

plaintiff also issued legal notice dated 26th March, 2009 to the defendant

asking it to cease and desist from using the impugned name. However,

in the reply the defendant has stated that since the services provided by

the defendant are different, therefore, the request was not acceded to.

8. The defendant has claimed the prior adoption of the said

name since 1st January, 2004. The plaintiff has stated that in view of the

conduct of the defendant, the defendant is guilty of infringement of

exclusive and statutory rights of the trade mark as well as dilution and

act of unfair competition and the rights of the plaintiff are protected

under Section 29 of the Trade Mark Act, 1999 in view of the registration

already granted in favour of the plaintiff under class 16, 32, 33 and 42 of

the Act being a well known trade mark.

9. It is also stated that the present case is a case of triple identity

where the mark is identical, the business/services are also identical i.e.

health Spa and fitness and related services and class of customers are

also the same and, therefore, the defendant cannot be allowed to ride

piggy back on the goodwill and reputation earned by the plaintiff.

10. Along with the suit the plaintiff filed the application under

Order XXXIX Rules 1 & 2 being I.A. No.10586/2009 and an ex parte ad

interim order was granted on 21st August, 2009 against the defendant

restraining it from using the mark/name „Ozone‟ in relation to the

services of the fitness center, spa health club and gymnasium except the

services of swimming pool provided by the defendant under the trade

mark „Ozone‟.

11. In another application being I.A. No.10587/2009 a Local

Commissioner was appointed by this court to make the inventory and

take into custody all the infringing material, newspapers, letters,

brochures, pamphlets, advertising material, publicity material, sign

boards, invoices etc bearing the trade mark „Ozone‟ and hand over the

same on superdari to the defendants or its representatives who shall give

an undertaking that the seized material would be produced as and when

directed by the court. The Local commissioner was also authorised to

sign the accounts books, ledgers, cash books, purchase and sale of

services provided by the defendant and to take photographs, if necessary.

In compliance with the orders of the court the Local commissioner filed

his report on 16th September, 2009 along with the documents.

12. The defendant filed an appeal being FAO (OS) No. 476/09

against the ex parte order dated 21st August, 2009 along with the interim

application which was disposed of with a direction to hear the interim

application on 21st October, 2009. The matter was listed on 21st

October, 2009. The interim application was listed for arguments on 12th

November, 2009 as the pleadings filed by the parties were not on record.

On 12th November, 2009 the matter was adjourned at the request of the

defendant to 17th December, 2009 and due to a similar position even on

that date, the matter was adjourned to 22nd December, 2009 when it was

finally heard on 22nd and 23rd December 2009 on the interim injunction.

13. The defendant filed the written statement and reply to the

interim application. The main defense raised by the defendant is that the

defendant is a Charitable Trust registered under the Charitable Trust Act

and is managed by „Prabodhan‟ which was started in 1972. The

defendant applied for registration of the service mark on 9 th August,

2004 and the said trade mark was accepted and advertised in the Trade

Mark Journal dated 1st September, 2006 which is under Opposition

No.255171. It is contended by the defendant that the defendant is

providing sport promotion and blood bank services under the trade mark

„Prabodhan‟ and swimming services under the name „Ozone‟. The

defendant has installed „Ozone‟ Generation Plant at site for water

treatment of swimming pool. It is contended by the defendant that the

defendant was never in the field of health club as the premises are given

by „Talwalkar‟ for running their fitness club and „Talwalkar‟ is a

separate entity which is running its business under the name/mark

„Talwalkar‟. Various preliminary objections have been raised by the

defendant which are given as under:-

a) That this court has no jurisdiction to entertain and try the

present suit and the provisions of Section 134 are not

attracted as the defendant is not registered under Clause 41

of the classification which is pending for registration in

respect of the said services.

b) That the suit is liable to be stayed as the right of the parties

concerning the subject matter, namely, service mark

„Ozone‟ are pending before the trade mark office.

c) That the present suit suffers from the defects of delay,

latches and acquiescence and the plaintiff is not entitled for

any relief.

d) That the word „Ozone‟ has not acquired secondary meaning

in favour of the plaintiff and the plaintiff is not the

proprietor. It is a generic name and no one can have

exclusive right over the same.

e) That the word „Ozone‟ is common and various other

companies, traders and societies are using the word „Ozone‟

for various goods and services.

f) That the suit has not been properly valued for purposes of

court fees and jurisdiction and no proper court fee has been

paid and the suit has also not been signed and verified by a

duly authorised person. The suit has also not been filed in

accordance with High Court Rules.

14. In the replication it is contended by the plaintiff that the

defendant runs the Activity Center under the mark „Ozone‟ and the

defendant is providing health related services under the impugned mark.

The plaintiff is the prior user of the mark in question as the defendant as

per alleged admission is using the impugned mark since the year 2004.

15. As regards the objection raised by the defendant with respect

to delay and latches, the case of the plaintiff is that it was in March 2007

that the plaintiff became aware of the defendant‟s mark when the same

was advertised in the trade mark journal. Immediately, the plaintiff filed

the notice of opposition to the said mark so that it could not be registered

in favour of the defendant as per the case of the plaintiff.

16. I have heard learned counsel for both the parties and have

also gone through the pleadings and documents filed by the parties and

the report submitted by the Local commissioner. From the documents it

appears that the plaintiff company adopted the mark „Ozone‟ in relation

to health services from the year 2001. The registration for the mark

„Ozone‟ with the suffix has been issued in favour of the plaintiff with

effect from 13th May, 2002 claiming user as of 1st April, 2002. The

record further shows that the health center and spa was launched under

the brand name „Ozone‟ in October 2002 and the name of the plaintiff

company earlier was Taj Resorts Pvt. Ltd. which was changed to

„Ozone‟ Spa Pvt. Ltd. on 6th April, 2003. Various registrations have

been issued in class 30, 32, 33 and 42 claiming user as of 1st May, 2001

as from the date of registration i.e. 11th June, 2003. The copyright

registration was also granted in favour of the plaintiff on 3 rd December,

2003. The plaintiff‟s application in clause 41 bearing No.1254797 as on

11th December, 2003 claiming user from 1st May, 2001 is under

opposition filed by the defendant.

17. Before taking any legal action the plaintiff also issued a legal

notice dated 26th March, 2009 to which the defendant sent its reply vide

letter dated 13th April, 2009. It is denied by the plaintiff that the

defendant‟s activities are sports related activities under the name

„Prabodhan‟. In fact, according to the plaintiff, all the health related

activities such as Gym, Aerobics, Yoga, Spa etc. are being run under the

name „Ozone‟ Club and the said fact is evident from the documents filed

by the defendant. It is also denied by the plaintiff that the mark „Ozone‟

is a generic word and it is used by various parties. According to the

plaintiff it is an arbitrary mark in relation to the services for which it is

being used and the mark adopted and used by the plaintiff is reputed and

popular on account of residual goodwill and promotion of the said mark

in India. The learned counsel for the plaintiff has also referred various

documents filed by the plaintiff as well as defendant and relied upon

various decisions.

18. Similarly, the defendant‟s application claiming user as of 1 st

January, 2004 as from the date of application in class 41 bearing

application No.1301322 is also under opposition filed by the plaintiff. It

is not in dispute that before filing of the present suit the legal notice

dated 26th March, 2009 was issued by the plaintiff to the defendant

which was duly replied by the defendant on 13th April, 2009.

19. Now I shall deal with the contentions raised by the defendant.

The first objection of the defendant is that the suit for infringement of

the trade mark is not maintainable as the plaintiff has no registration in

its favour in class 41 of the Schedule IV of the classification, thus, the

plaintiff cannot invoke the jurisdiction under Section 134 of the Act.

From the documents filed by the plaintiff it appears, prima facie, that the

trade mark „Ozone‟ adopted and used by the plaintiff has acquired

secondary meaning by virtue of long and continuous user. In support of

the claim of goodwill and reputation, the plaintiff has furnished the

statement of sale and promotional expenses as well as the documents to

show that the mark „Ozone‟ has been continuously used and advertised

in various modern media and the mark was adopted to distinguish with

the services of the plaintiff. The plaintiff has filed the ample evidence

on record to show their business activities and extensive advertisement

and in view of that, there is no hesitation to come to the conclusion

that the said name „Ozone‟ is known mark in relation to the services

provided by the plaintiff despite of the fact that the plaintiff‟s

application for registration in class 41 of Schedule IV of the

Classification in relation to health club and related services is pending

for registration but at the same time it is an admitted fact that the

plaintiff has got the registration in class 42 in relation to services such as

medical, hygiene and beauty care etc.

20. As regards the suit for infringement is concerned,

undisputedly the plaintiff‟s trade mark „Ozone‟ is registered in respect

of the various goods in classes 16, 30, 32, 33 and particularly in class 42

in respect of goods including hygiene and beauty care services.

Although, these are not same services but somehow they are connected

with the services provided by the plaintiff under the mark „Ozone‟, the

mark which has already acquired a residual goodwill and reputation,

therefore, this court is of the considered opinion that the present matter

covers under the dicta of Section 29 (4) of the Act where the protection

of the mark is given to the dissimilar goods as use of the mark by the

defendant would be unfair advantage of or is detrimental to the mark

of the plaintiff, therefore, it is a well known trade mark within the

meaning of Section 2(1)(zg) of the Act and have the present case

covered under Section 29(4) of the Act.

21. The plaintiff under the said circumstances is also entitled to

invoke the territorial jurisdiction under section 134 (2) of the Act, as

the plaintiff is actually and voluntarily carries on business and working

for gain in Delhi.

22. The learned counsel for the defendant has referred various

judgments in support of his contention. The first judgment he has

referred to is Rhizome Distilleries P. Ltd. & Ors. v. Pernod Ricard

S.A. France & Ors., 166 (2010) Delhi Law Times 12 (DB) on the

point that the mark „Ozone‟ is not protectable under the law being a

common name. I am of the view that this judgment does not help the

case of the defendant on the reasons that the defendant in the referred

judgment was the registered proprietor of the trademark. Secondly, it

was held by the Division Bench of this Court that the defendant applied

for registration of the trademark in 2002 and plaintiff had withdrawn its

objections before the Excise Department and the said fact has been

disclosed by the plaintiff in the matter. Thirdly, the Court held that the

mark/label Imperial Blue and Rhizome Imperial Gold are dissimilar and

in view of these reasons no interim protection was issued. But the facts

in the present case are different, as the two rival marks are identical.

23. The second judgment referred by the learned counsel for the

defendant is D. Adinarayana Setty v. Brooke Bond Tea of India, AIR

1960 Mysore 142 (V 47 C 37) in order to stress his submission on the

point of stay of the present proceedings due to pendency of its

application wherein it has claimed concurrent registration. The said

judgment is also not applicable to the facts and circumstances of the

present case as the present case is not a case of concurrent and honest

user. In the present case the application for registration was filed in

2004 with the user of 2004. The question of concurrent and honest user

in the circumstances does not arise. Therefore, the suit proceedings

cannot be stayed.

24. The next objection raised by the defendant is that the suit

suffers from the defect of delay, laches and acquiescence and the

plaintiff is not entitled to any relief due to the same. The present suit is a

suit for infringement of trade mark and exclusive and statutory rights of

infringement of trade mark cannot be defeated in case there is any delay

on the part of the plaintiff for bringing the action before the court as per

well established law. In Swaran Singh V. Usha Industries (India) &

Anr., AIR 1986 Delhi 343 DB, it was held as under :

"(7) There is then the question of delay. Learned counsel for the respondents had urged that the delay is fatal to the grant of an injunction. We are not so satisfied. A delay in the matter of seeking an injunction may be aground for refusing an injunction in certain circumstances. In the present case, we are dealing with a statutory right based on the provisions of the trade and Merchandise Marks Act, 1958. An exclusive right is granted by the registration to the holder of a registered trade mark. We do not think statutory rights can be lost by delay. The effect of a registered mark is so clearly defined in the statute as to be not capable of being misunderstood. Even if there is some delay, the exclusive right cannot be lost. The registered mark cannot be reduced to a nullity. The principles governing other types of injunctions are not to be readily applied to a case like the present."

25. In Hindustan Pencils (P) Ltd. Vs. India Stationery

Products Co. & Anr., AIR 1990 Delhi 19), it was observed as under :

"31. Even though there may be some doubt as to whether laches or acquiescence can deny the relief of a permanent injunction, judicial opinion has been consistent in holding that if the defendant acts fraudulently with the knowledge that he is violating the plaintiff's rights then in that case, even if these is an inordinate delay on the part of the plaintiff in taking action against the defendant, the relief of injunction is not denied. The defense of laches or inordinate delay is a defense in equity. In equity both the parties must come to the Court with clean hands. An equitable defense can be put up by a party who has acted fairly and honestly. A person who is guilty of violating the law or infringing or usurping somebody else's right cannot claim the continued

misuse of the usurped right. It was observed by Romer, J. in the matter of an application brought by J.R Parkington and Coy. Ld" 63 R.P.C. 171 that "in my judgment, the circumstances which attend the adoption of a trade mark in the first instance are of considerable importance when one comes to consider whether the use of that mark has or has not been a honest user. If the user in its inception was tainted it would be difficult in most cases to purify it subsequently". It was further noted by the learned Judge in that case that be could not regard the discreditable origin of the user as cleansed by the subsequent history. In other words, the equitable relief will be afforded only to that party who is not guilty of a fraud and whose conduct shows that there had been, on its part, an honest concurrent user of the mark in question. If a party, for no apparent or a valid reason, adopts, with or without modifications, a mark belonging to another, whether registered or not, it will be difficult for that party to avoid an order of injunction because the Court may rightly assume that such adoption of the mark by the party was not an honest one. The Court would be justified in concluding that the defendant, in such an action, wanted to cash in on the plaintiff's name and reputation and that was the sole, primary or the real motive of the defendant adopting such a mark. Even if in such a case, there may be an inordinate delay on the part of the plaintiff in bringing a suit for injunction, the application of the plaintiff for an interim injunction cannot be dismissed on the ground that the defendant has been using the mark for a number of years. Dealing with this aspect Harry D. Nims in his "The Law of Unfair Competition and Trade- Marks". Fourth Edition, Volume Two at page 1282 noted as follows:

WHERE infringement is deliberate and wilful and the defendant acts fraudulently with knowledge that he is violating plaintiff's rights, essential elements of estoppel are lacking and in such a case the protection of plaintiff's rights by injunctive relief never is properly denied. "The doctrine of estoppel can only be invoked to promote fair dealings."

26. On the question of balance of convenience the learned

counsel for the defendant has also referred to Wander Ltd. and Anr.

Vs. Aptox India (P) Ltd., 1991 PTC 1 and Colgate Palmolive (India)

Ltd. Vs. Hindustan Lever Ltd. JT 1999 (6) SC 89 wherein it is

observed that the Court must weigh one party‟s need against another and

determine where the "balance of convenience lies" in order to consider

the matter on balance of convenience and prima facie case. In the

present case, it is the defendant‟s case itself that the defendant was never

in the field of health club. Further, the two rival marks of the parties are

same. Therefore, the finding of this referred decision does not help the

case of the defendant.

27. The next judgment referred by the learned counsel for the

defendant is B.L. and Co. and others v. Pfizer Products Incl., 2001

PTC 797 (Del) (DB). In this case an ex-parte ad-interim order was

vacated by the Division Bench on various reasons, one of the reasons

was that the plaintiffs‟ products were not available in India and even

user of the plaintiffs was very recent in overseas mark and on the other

hand the defendant had launched its business on large scale in India. By

considering the irreparable loss and injury to the defendant, an ex-parte

order was vacated and the matter was referred to the learned Single

Judge for disposal of the application under Order XXXIX Rules 1 & 2

CPC on merit. The situation in the present case is different in the

defendant‟s appeal, the Division Bench did not interfere with the ex-

parte order and disposed of the appeal with the directions to expedite the

hearing of the interim application and the same has been heard.

28. The other objection raised by the defendant is that „Ozone‟ is

a generic name and no one can have exclusive rights over the same and

the plaintiff is also not the proprietor of the mark „Ozone‟. The said

argument is a self defeating argument. Firstly, the mark „Ozone‟ is a

registered trade mark in favour of the plaintiff and secondly the

defendant himself has applied for registration of the trade mark „Ozone‟

in class 41 in relation to the services as that of the plaintiff. It does not

lie in the mouth of the defendant to contend now that the mark is a

generic mark, in fact the defendant is debarred from raising such a plea

in view of his own conduct. The said contention is totally misconceived.

In the case of Automatic Electric Limited v. R.K. Dhawan & Anr.,

1999 PTC (19) 81 in para 16, the learned Single Judge of this Court has

observed that the defendant had got their trade mark "DIMMER DOT"

registered in Australia. The fact that the defendant itself has sought to

claim trade proprietary right and monopoly in "DIMMER DOT", it does

not lie in their mouth to say that the word "DIMMER" is a generic

expression. User of the word "DIMMER" by others cannot be a defence

available to the defendants, if it could be shown that the same is being

used in violation of the statutory right of the plaintiff.

29. The next objection of the defendant is that there are various

other companies, traders, societies and associations which are using the

word „Ozone‟. The said submission is also without any substance as the

defendant has failed to produce any cogent evidence before this court to

show that any third party is using the name/mark „Ozone‟ in relation to

health related services. The said submission is also rejected.

30. The other submission of the defendant is that the plaintiff has

not filed the certificate for use in legal proceedings and has merely filed

the copies of the registration certificate. The admission/denial in the

present matter is yet to be carried out by the parties. The plaintiff still

has an opportunity to file the certificates of registration or to summon

the relevant record of the Trade Mark office in order to prove the

registration granted in favour of the plaintiff, therefore, the objection at

this stage cannot be decided in favour of the defendant as the plaintiff

has filed the photocopies of registration certificates in its favour.

Further, there is no denial by the defendant that the plaintiff has not

obtained the registration. Therefore, the objection is not sustainable.

31. The next submission of the defendant is that the suit is not

properly valued for purposes of court fees and jurisdiction and no proper

court fee has been paid and the suit has not been signed, verified and

filed by a proper and authorised person. Further, the suit has not been

filed in accordance with the Delhi High Court Rules, 1966. No reason

whatsoever has been assigned by the defendant for raising the

preliminary objections in Paras 15 to 17 in the written statement and

reply to the interim application. The plaintiff has valued the suit for

purposes of court fees and jurisdiction at Rs.25,00,200/- and proper court

fee of Rs.26,764/- has been paid. Further, the plaint has been signed by

Mr. V.K.Pahwa who is the authorised signatory of the plaintiff. The

resolution in his favour dated 6th May, 2009 is already placed on record.

The plaintiff has also filed the original Memorandum and Articles of

Association of the plaintiff company. No reason whatsoever has been

assigned by the defendant that how the suit was not filed in accordance

with the Delhi High Court Rules. It appears that these preliminary

objections have been raised by the defendant only for the purpose of

raising objections, otherwise prima facie the same are baseless and

cannot be considered at this stage of the matter.

32. As far as merit of the case is concerned, it is pertinent to

mention that the defendant itself has admitted in the written statement

that it is using the name „Ozone‟ in respect of the activities of swimming

pool only as the defendant has installed „Ozone‟ generation plant on side

for water treatment of swimming pool. Admittedly, there is no ex parte

interim order passed by this court in this regard as the learned counsel

for the plaintiff did not press the ex parte ad interim order in relation to

the said services, still the defendant is pressing for vacation of the orders

in respect of other services. It appears that the statement made by the

defendant in the written statement is not candid and is incorrect in the

face of the documents produced by the defendant as well as from the

report of the Local Commissioner.

33. The explanation given by the defendant is in Para 6 of the

preliminary objection and it is that the defendant was never in the field

of health club and the premises have been given to Talwalkar for

running their fitness club which is a separate entity and they are running

their business under the name Talwalkar and not „Ozone‟. The

defendant has also placed copy of the agreement dated 7 th September,

2006 in this regard in order to satisfy its stand.

34. After going through the clauses of the agreement dated 7th

September, 2006, it appears that the averment made by the defendant

in written statement is not correct. A few relevant clauses of the said

agreement are given as under:-

"1. The Principal :

a. .....

b. Shall provide necessary security to the premises, from out sides of the structure. The Caretaker is responsible for security of their equipment and belongings fixed or stored in the premises under their control and the principal shall not be hold responsible for loss or damages to the equipment/belonging to the Caretaker.

c. .....

d. Shall allow the Caretakers to take outsiders as fitness centre members other than „Ozone‟ Club‟s members. e. ....

f. ...."

35. The report of the Local Commissioner further demolishes the

case of the defendant as it is mentioned in the report of the Local

Commissioner that at the reception there was a sign board stating „Ozone

Activity Centre‟. A photograph depicting the same has also been filed.

The Local commissioner has also seen the placards with the mark

„Ozone‟ at the defendant‟s premises. The question was also raised to the

defendant as to whether that the mark „Ozone‟ Activity Centre for health

club, gym facility was being used and the Local Commissioner was

informed by the defendant by one Mr. Tribhuvani that the health club

etc. is being used with Talwalkar mark on it. He also informed the Local

commissioner that 500 members are using „Ozone‟ Activity

Centre/Fitness center. The documents filed by the Local commissioner

establish that in fact the defendant is in the service of health club

centre/fitness centre as alleged by the plaintiff. The plaintiff has also

dealt with the objection in Para 4 of the preliminary objection in the

replication which negates the case of the defendant.

36. After thoughtful consideration of the entire matter and having

gone through the pleadings, documents of the parties and report of the

Local Commissioner, it appears to me that a strong prima facie case for

confirmation of the ex parte ad interim order has been made out by the

plaintiff. The balance of convenience also lies in favour of the plaintiff

and against the defendant. In case the interim order is not issued the

plaintiff will suffer irreparable loss and injury.

37. Therefore, till the disposal of the suit the defendant is

restrained from using the mark/name „Ozone‟ in relation to the services

of Fitness Centre, Spa, Health Club and Gymnastic except the services

of swimming pool provided by the defendant under the name „Ozone‟.

The application of the plaintiff is disposed of accordingly.

CS (OS) No. 1528/2009

38. The parties shall appear before the Joint Registrar on 8th

March, 2009.

MANMOHAN SINGH, J.

JANUARY 13, 2010 sa