M/S Flight Center Travels Pvt. ... vs Rahul Nath & Ors.
2010 Latest Caselaw 4200 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) NO. 1193/2005


                                              Date of Decision 10.09.2010

M/s Flight Center Travels Pvt. Ltd.                   ......    Plaintiff

                                   Through:    Mr.   Ankush     Mahajan,
                                               Advocate

                                    Versus

Rahul Nath & Ors.                                     ...... Defendants
                                   Through:    None


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                           YES
2.     To be referred to the Reporter or not ?                 NO
3.     Whether the judgment should be reported
       in the Digest ?                                         NO

V.K. SHALI, J.

1. This is a suit for permanent injunction filed by the plaintiff for

restraining the defendants from infringing the trade mark of

the plaintiff and action against passing off and for rendition of

accounts etc.

2. Briefly stated the facts of the case are that the plaintiff is a

well known Indian Travel Company incorporated on

04.04.1994 having its registered office at B-5/157,

Safdarjung Enclave, New Delhi-110029. Plaintiff is stated to

be carrying on business from property bearing no. B-7/63,

Safdarjung Enclave, New Delhi-110029. It is alleged that the

plaintiff M/s Flight Center Travels Pvt. Ltd. is a reputed travel

agency dealing in booking of air and rail tickets, hotels,

resorts and providing medical insurance to its clients

travelling abroad. It is stated that on account of its efficient

and affordable services it has come to acquire a certain

amount of reputation and goodwill in the market. So far as

the business of travel agency is concerned, it is alleged that

the plaintiff has also located its website at

www.flightcenter.co.in. The plaintiff is also accorded an IATA

(International Air Transport Association) accreditation and is

thus booking air tickets for various foreign airlines like,

British Airways, Air France, Lufthansa, Delta, Air India,

Cathay Pacific, United Airlines etc. it is alleged that this

trade mark 'Flight Center' has been in use since 1994 by the

plaintiff and the ascendency of the business by this trade

mark has been depicted by the plaintiff by referring to the

turn over which was 2.87 crores in the year 1995-96 and has

increased to 4.51 crores in the year 2004-05.

3. It is alleged that the defendant no. 2 is a joint venture

company of M/s Friends Globe Travels Ltd./defendant no. 4,

M/s Flight Center Ltd., Australia/defendant no.3 and

defendant no. 1 appears to be the CEO of the defendant no. 2

who are using the domain name www.flightcenter.com in

whose lay out the essential features are almost the same to

the website of the plaintiff's and thereby the defendants are

not only infringing the trade mark but also service market of

the plaintiff. It is also passing of its services as that of the

plaintiff.

4. The defendants were served and they put in appearance

through counsel, however, after that they have absented as a

consequence of which they were proceeded ex-parte.

5. The plaintiff in support of its case has tendered an affidavit of

Shri Ajay Gupta as Exhibit PW-1/A who is one of the Director

of the plaintiff's company and he has proved his additional

affidavit as exhibit PW1/X and proved various documents as

Ex. PW/1 to PW/13 in substantiating the averments made in

the plaint. In his affidavit he has fully supported the

averments made in the plaint. The documents which have

been proved by him are as follows:

Ex.P-1 (Certificate of Incorporation issued by Additional Registrar (NCT of Delhi and Haryana), Ex.P-2 (Print outs of the plaintiffs websites, located at www. Flightcenter.com), Ex.P-3 (Certificate of Accreditation (IATA) ), Ex.P-4 (Certificate of membership 2005-06 issued by the Travel Agents Association of India), Ex.P-5 (Certificate issued by Association of Domestic Tour Operators of India), Ex.P-6 (Invitation of Ajay S. Gupta from The 1994 International Beer, Food and Wine Festival), Ex.P-7 (Travelling tickets), Ex.P-8 (ANA logistics), Ex.P-9 (Letter by fax (legal action for passing off flight centre), Ex.P-10 (Relevant print outs of the defendants' website located at www.fcmtravel.co.in), Ex.P-11 (News paper dated 5th March, 2005, H.T. Business), Ex.P-12 (Magazine T- 3 (Travel Trends Today) May, 2005, Vol. 25, issue no. 5) and Ex.P- 13 (Letter from the Registrar of Trade Marks Mumbai).

6. I have gone through the averments made in the plaint as well

as the affidavit and the documents. The testimony of PW-1

Ajay Gupta has gone completely uncontroverted, therefore,

there is no reason as to why the Court should not believe the

testimony of Ajay Gupta to the effect that the plaintiff is

carrying on the business with the trade name Flight Center

since its inception from 1994. It has been duly recognized by

Registrar of Trade of its trade mark by the name 'flight center'

whereupon a website with a domain name has been created.

There is no reason as to why it should not be protected

against the unscrupulous person using the said trade name

with a view to make quick money. The defendants obviously

have been accused of having indulged in infringement of the

said trade mark as well as indulged in passing of the trade

name as that of the plaintiff. The documents have also been

duly exhibited, and therefore, I am of the view that the

plaintiff has sufficiently proved its case that the defendants

are infringing the trade mark of the plaintiff and the plaintiff

is entitled to a permanent injunction, restraining the

defendants from using the trade mark/service mark by the

name of www.flightcenter.com.

7. So far as the question of rendition of accounts and the

payment of damages are concerned, the plaintiff has not

placed on record either by way of its affidavit or any other

material so as to show that the defendants have been making

money on account of the said infringement of the trade mark

of the plaintiff. Nor it has been proved that it has suffered

any damages, and therefore, so far as the rendition of

accounts and the payment of damages are concerned, that is

not proved, and accordingly, the prayer in that regard is

dismissed.

8. For the reasons mentioned above, I am of the considered

opinion that the plaintiff is able to prove its case by

preponderance of probabilities, so far as the grant of

permanent injunction against the defendants from using the

trade name is concerned. The defendants are restrained from

using the trademark 'Flight Center' and or using the

mark/trading style 'Flight Centre' or any deceptive variant in

any manner whatsoever in relation to travel and tour services.

So far as the rendition of accounts and the payment of

damages is concerned, the plaintiff has not been able to prove

the same. Accordingly, the suit is partly decreed as above.

Let the decree sheet be drawn accordingly. No order as to

costs.

V.K. SHALI, J.

September 10, 2010 KP