Ireo Pvt. Ltd. vs Mr.Mahender Arora & Ors.
2014 Latest Caselaw 1388 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Reserved on :16.09.2013
                                                   Decided on :14.03.2014

+     CCP (O) 124/2012 in CS(OS)3156/2012
      IREO PVT. LTD.                                     .... Petitioner
                              Through   Mr.Ajay Sahni, Ms.Kanika Bajaj and
                                        Ms.Shivangi Amrit, Advocates

                     versus

      MR.MAHENDER ARORA & ORS.              .....Respondents
                  Through  Mr.Chetan Sharma, Senior Advocate
                           with Mr.Pramod Kumar Singh and
                           Mr.Abhishek Ghai, Advocates

+     CCP (O) 62/2013 in CS(OS)3156/2012
      IREO PVT. LTD.                                     .... Petitioner
                              Through   Mr.Ajay Sahni, Ms.Kanika Bajaj and
                                        Ms.Shivangi Amrit, Advocates

                     versus

      MR.LALIT SANDUJA & ORS.      .....Respondents
                   Through   Mr.Chetan Sharma, Senior Advocate
                             with Mr.Pramod Kumar Singh and
                             Mr.Abhishek Ghai, Advocates

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

1. The plaintiff has filed the Suit CS(OS)3156/2012 seeking a decree of permanent injunction to restrain the defendant from offering for sale or

dealing in real estate business under the impugned trade mark „Genesis SKYON‟ or any other trade mark which may be deceptively similar to the plaintiff‟s trade mark „IREO SKYON‟. Other connected reliefs are also sought. An application for stay was filed seeking an interim injunction to restrain the defendant from offering for sale, advertising or dealing in real estate business under the said impugned trade mark or using any trade mark which is deceptively similar to the plaintiff‟s trade mark till pendency of the Suit.

2. The suit came up for hearing on 19.10.2012 when this Court by an ex parte ad interim injunction restrained the defendant/(Respondent No.6), its directors, proprietors etc. from constructing, selling, offering for sale, advertising directly or indirectly dealing in the real estate business under the trade mark „Genesis SKYON‟ or any other trade mark which is deceptively similar to the trade mark of the plaintiff‟s IREO SKYON.

The following stay order was passed:-

"After having given my thoughtful consideration to the arguments advanced by the learned counsel for the plaintiff, I am of the considered view that the plaintiff has made out a prima facie case for the grant of ex-parte ad interim injunction in their favour. The balance of convenience also lies in favour of the plaintiff and if an ex-parte interim injunction is not granted, irreparable loss and injury would be caused to the plaintiff.

Accordingly the defendant, its directors, proprietors or partners, distributers, dealers, stockists, retailers and agents are hereby restrained from constructing, selling, offering for sale, advertising directly or indirectly dealing in the real estate business under the trade mark „Genesis SKYON‟ or any other trade mark as may be deceptively similar with the trade mark of the plaintiff i.e. „IREO SKYON‟, till further orders."

3. I will first deal with CCP 124/2012. The said contempt petition has

been filed stating that in compliance of provision of Order 39 Rule 3 CPC, the plaintiff served a copy of the order with complete paperbook on respondent No.1, on 19.10.2012. It is further urged that in blatant disregard of the interim order passed by this Court, contempt has been committed by the respondent. On 27.10.2012 and 02.11.2012, the petitioner came across certain advertisements published by the respondents using the brand name „Genesis SKY-EON‟ in leading newspapers including The Times of India and The Hindustan Times. It is urged that the said trade mark which is now being advertised by the respondent, namely, „Genesis SKY-EON‟, is in blatant and willful disobedience and disregard of the interim order dated 19.10.2012 passed by this Court.

4. In view thereof, the plaintiff filed the present CCP on 17.11.2012. On 21.11.2012, the said CCP was listed before the court and the submissions of learned counsel for the plaintiff was noted that the same be treated as an application under Order 39 Rule 2A CPC. This Court issued notice to defendant No.1 in the said case.

5. I now come to CCP 62/2013 the plaintiff has subsequently filed CCP no. 62/2013. This petition is based on subsequent advertisements issued by the respondent after the Ist petition. It is claimed that the respondent continued the willful and deliberate violation of the injunction order passed by this Court. This contempt petition came up for hearing on 30.05.2013 and the Court issued notice on the same. Though notices were issued to respondents No.1 to 3 who were the Directors of respondent No.4/defendant, the service report does not reflect whether service was effected on them or not.

6. Respondent No.6 has filed a reply thereto. Apart from repeating all the contentions stated in the pleadings, the said respondent has denied that

the trade mark „Genesis SKY-EON‟ is deceptively similar to the plaintiff‟s trade mark.

7. The interim order passed by this Court on 19.10.2012 clearly restrains the defendant from using the trade mark „Genesis SKYON‟ or any other trade mark as may be deceptively similar with the plaintiff‟s trade mark IREO SKYON. There is no denial that the respondents/defendant has been using the word „Genesis SKY-EON‟ after the injunction order was passed on 19.10.2012.

8. In my view it is not possible to agree with the submissions of the defendant/Respondent No.6. When the plaintiff moved the said injunction application, it was not possible to mention the number of marks that may be used by the Respondent after passing off of the interim order. The relief restraining the defendant/respondent from using a deceptively similar mark was hence granted in favour of the plaintiff on 19.10.2012. Defendant/Respondent No.6, certainly, is not entitled to use any deceptively similar mark to that of the trade mark of plaintiff. If the defendant is permitted to use trade mark „Genesis SKYON‟ the purpose of passing the stay order would be defeated. There is no material difference between the word „Genesis SKYON‟ and „Genesis SKY-EON‟. Prima facie, I hold that the defendant have committed willful disobedience and disregard of the interim order passed by this Court on 19.10.2012.

9. Respondent No.6 is directed to file a detailed reply as to why the contempt proceedings be not initiated against the said respondent.

10. At the first instance, notice was only issued to defendant No.1 in the suit by this Court. In view of the above order, I direct issuance of notice to respondents No.1 to 5 of the present application, returnable on April 01, 2014, before the Joint Registrar.

CCP (O) 62/2013

1. Issue fresh Notice to the respondents returnable before the Joint Registrar on April 01, 2014.

2. List the matter for further proceedings on the said date i.e. April 01, 2014, before the Joint Registrar.

JAYANT NATH (JUDGE) MARCH 14, 2014 'raj'