Delhi High Court
Lokesh Thukral vs Select Infrastructure Pvt Ltd on 18 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 18thDecember, 2014
+ CS (OS) No.3485/2014
LOKESH THUKRAL ..... Plaintiff
Through Mr. Vibhor Garg, Adv.
versus
SELECT INFRASTRUCTURE PVT LTD ....Defendant
Through Mr. Pavit Singh Katoch and
Mr. Rajat Jain, Advs.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiff has filed a suit for permanent and mandatory
injunction restraining infringement of trademark "Food Fiesta",
dilution, passing off, delivery up, rendition of accounts of profits,
damages and cost etc. against the defendant.
2. The matter was listed on 18th November, 2014 before Court
when after hearing the defendant and its agents were restrained from
using the trademark 'Food Fiesta' in respect of the similar business
as that of the plaintiff.
3. It is averred in the plaint that the plaintiff is a leading Food and
Drink and Catering Service Provider and has been consistently
providing the said services for the past 25 years and has strived and
succeeded in creating a respectable image among its customers,
which include private sector companies, government organizations
etc.
4. The plaintiff mainly has its operations in providing personalized
services, serving multi-cuisine menus to its customers in
conferences, banqueting, social events, corporate parties, marriages
and gets togethers, etc. and is categorically equipped and specialized
in catering to large events with large number of people.
5. The plaintiff is the owner and registered proprietor of the
registered trademark and trade name, 'Food Fiesta' which is
registered vide registration No. 1410078 as of 30th December, 2005
under Class 42 of the Fourth Schedule to Trade Mark Rules, 2002, in
the name of the then proprietor, Late Sh. Jagdish Thukral, the father
of the plaintiff. Subsequently, vide registration No. 1837547 the
plaintiff, being the legal heir of Late Sh. Jagdish Thukral and having
taken over the operations of the business, the trademark was
registered in his name as of 8th July, 2009 and hence, the trademark
of the plaintiff is protected under the Trade Marks Act, 1999.
6. It has been stated that the trademark 'Food Fiesta' of the
plaintiff has been in full effect for well over 10 years and the plaintiff
has been using the said mark since 2004 in respect of providing food
and drinks, restaurant and catering services etc. The plaintiff has
also registered web domain www.foodfiesta.co.in which has been in
existence since 1st March, 2011.
7. The plaintiff has been advertising his services/products
extensively which has reached a large number of members of the
public and trade throughout India, and hence, a substantial amount
has been spent by him on advertising his trademark 'Food Fiesta'
and in adhering to strict quality standards set by the plaintiff.
8. It is averred that the trademark/name of the plaintiff 'Food
Fiesta' is a distinct logo bearing a colour combination of red, white
and black and consisting of an image of a fork and a spoon (cutlery)
along with the words 'Food Fiesta', with each such separate part of
the logo/mark forming the trademark of the plaintiff, collectively as
well as individually.
9. The defendant is engaged in running, managing, operating and
day to day decision making with regard to 'Select City Walk' at Saket,
Delhi (hereinafter referred to as the "aforesaid mall").
10. It is alleged by the plaintiff that in the beginning of November,
2014 the customers/clientele of the plaintiff had inquired from the
plaintiff regarding the opening of a restaurant/food stall at the
aforesaid mall being run, operated and managed by the defendant in
the name and style of 'Food Fiesta' and bearing similar/identical
logo/branding as that of the plaintiff. The logo adopted by the
defendant is similar/identical to that of the plaintiff as the logo of the
plaintiff bears a Fork and a Spoon (cutlery) along with the words
'Food Fiesta' in a combination of red, white and black while the
branding and mark adopted by the company consists of the same
words as registered by the plaintiff i.e. 'Food Fiesta' along with a Fork
and a Knife (cutlery) and a Chef's hat in the same combination of red,
white and black.
11. The plaintiff upon making inquiries and investigating into
running of the said restaurant/food stall at the aforesaid mall came to
know that the defendant was not only running the said
restaurant/food stall at the Terrace, 2nd Floor, of the aforesaid mall,
but the defendant has extensively advertised the same on the
internet including Facebook and Twitter as well as via print medium
on hoardings, display signs etc at various public places, which clearly
amounts to infringement of registered trademarks of the plaintiff and
such deceptive advertising has been accessed by many and
adversely effects and prejudice the business of the plaintiff.
12. It is stated that the plaintiff sent a legal notice dated 4th
November, 2014 upon the defendant to cease and desist from using
the mark or logo, or any other logo identical/deceptively similar to
registered plaintiff's trademark 'Food Fiesta' and to surrender for
destruction, without compensation, all advertising and promotional
material, labels bearing the name/mark, to withdraw all trademarks
used and/or filed for registration containing 'Food Fiesta' or any logo
deceptively similar to the registered trademark of the plaintiff and to
furnish a written undertaking that the defendant shall not henceforth
use the registered trademarks of the plaintiff, or any logo /mark
identical/deceptively similar to that of the plaintiff within 3 days of the
receipt of the said legal notice. However, despite the same, no reply
has been received from the defendant company and the defendant is
still continuing to use the infringing trademark/name.
13. It is averred that the defendant have adopted the mark 'Food
Fiesta' so as to trade upon the reputation and goodwill accruing to
the plaintiff and to earn undue profits. It has been contended that
since the customers at large associates the trade name and
trademark 'Food Fiesta' exclusively with the plaintiff, the defendant's
use of deceptively similar/identical trademark 'Food Fiesta' will
invariably deceive the public into a belief that the services of the
defendant are those of the plaintiff and the defendant is associated
with the plaintiff in some manner. It further leads to the defendant's
passing off its inferior quality services/products as that of the plaintiff
for commercial gain.
14. By order dated 4th December, 2014 with the consent of the
parties, the matter was referred to Samadhan, Delhi High Court
Mediation and Conciliation Centre for settlement. The parties have
resolved their disputes. The terms and conditions of the settlement
are mentioned in the Settlement Agreement dated 15th December,
2014. The said settlement agreement is duly signed by the parties
and their respective counsel as well as by the learned Mediator. The
original settlement agreement is also placed on record. The parties
shall be bound by the terms and conditions of the settlement as
mentioned in the settlement agreement. The suit of the plaintiff is
accordingly disposed of. A decree be drawn accordingly. the
settlement agreement dated 15th December, 2014 shall form part of
the decree.
(MANMOHAN SINGH)
JUDGE
DECEMBER 18, 2014
