Delhi High Court
Impresario Entertainment & ... vs Mech Mocha Game Studios Pvt Ltd on 29 September, 2016
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 29 th September, 2016
+ CS(OS) 1989/2015
IMPRESARIO ENTERTAINMENT & HOSPITALITY PVT
LTD ..... Plaintiff
Through Ms. Shikha Sachdev, Advocate
Versus
MECH MOCHA GAME STUDIOS PVT LTD ..... Defendant
Through Ms. Sumita Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1.
Plaintiff has filed the present suit for permanent and mandatory
injunction against infringement of rights in the trademark „MOCHA‟.
2. As per the plaint, the Plaintiff Company is an existing company under
the Companies Act, 1956, and is engaged in providing restaurant
services, including but not limited to conducting and managing
restaurants and coffee shops; operating restaurants and coffee shops;
providing expertise relating to provision of food and drink, particularly
coffee and coffee related products and setting up of coffee
shops/restaurants. The trademark MOCHA was adopted by the plaintiff
in the year 2001 and since then the same is being used continuously and
extensively by the plaintiff as part of their domain name and trading
name.
3. It has been averred in the plaint that the plaintiff at present has set up and
is managing and operating thirteen „MOCHA‟ restaurants and coffee
shops all over the country. Besides the aforesaid, the plaintiff has granted
franchise/license for consideration, to 13 exclusive franchisees all over
the country. The plaintiff‟s MOCHA Coffee Bar has also received the
Times Food Awards for the best coffee bar in various cities in the
country every year continuously from the year 2004 till 2012.
4. It has next been averred in the plaint that in India, the Plaintiff is the
registered proprietor of the trademark MOCHA and its variants with the
earliest registration since the year 2001, details of which are mentioned
hereunder:
TradeMark Reg. No. Goods & Class Status
MOCHA 1126376 Internet software Registered w.e.f.
(portal for 14.08.2002
information on
coffee) in class 9
MOCHA 1005909 Coffee, tea, Registered w.e.f.
cocoa, sugar, rice 26.04.2001
tapioca, sago,
coffee substitutes,
flour and
preparation make
from cereals,
bread, biscuits,
cakes pastry and
confectionery,
ices, honey,
treacle, yeast,
baking powder,
salt, mustard,
pepper, vinegar,
sauces, spices, ice
& food products
in class 30
MOCHA 1281592 Coffee, tea, Registered w.e.f.
coffees and cocoa, sugar rice 29.04.2004
conversations tapioca, sago,
coffee substitutes,
flour and
preparation make
from cereals,
bread, biscuits,
cakes pastry and
confectionery,
ices, honey,
treacle, yeast,
baking powder,
salt, mustard,
pepper, vinegar,
sauces,
(condiments)
spices and ice in
class 30
MOCHA 1281593 Providing of food Registered w.e.f.
coffees and and drink, other 29.04.2004
conversations services tube
rendered in the
restaurant in
class 42
MOCHA 2382256 Paper, cardboard Registered w.e.f.
SOCIAL and goods made 21.08.2012
from these
materials, not
included in other
classes; printed
matter; book-
binding material;
photographs;
adhesives for
stationery or
household
purposes; artistic
materials; paint
brushes;
typewriters and
office requisites
(except furniture)
instructional and
teaching material
(except
apparatus);
plastic materials
for packaging
(not included in
other classes);
printers type;
printing blocks in
class 16
MOCHA 2382251 Personal and Registered w.e.f.
SOCIAL social services 21.08.2012
rendered to meet
the needs of
individuals,
consultancy
services related
to social planning
in class 45
By virtue of the registrations, the plaintiff claims exclusive right to use
the trade mark MOCHA in respect of the goods for which it is registered.
5. Plaint also discloses that the plaintiff apart from the above registered
trademarks also owns and uses variants of its registered trade mark
MOCHA, being MOCHA, ARTHOUSE, MOCHA MOJO, MOCHA
COFFEES AND CONVERSATIONS and MOCHA BAKERY".
6. It has also been averred in the plaint that the plaintiff learnt in the month
of March, 2015 that the defendant was operating a video game parlour
using the trademark MECH MOCHA. It has next been averred in the
plaint that the registration of domain containing the mark "MOCHA" by
the defendant violates the common law as well as statutory rights of the
plaintiff Company and on a bare perusal of the impugned website
confusion is inevitable as to their origin because the domain name used
by the defendant is identical to the marks of the plaintiff Company. It has
also been averred that the malafide intentions of defendant is evident
from its act of getting the domain names registered with the plaintiff
Company‟s registered and well-known mark which clearly establishes
that the defendant got the impugned domain names registered keeping in
mind the reputation of the Plaintiff Company in an attempt to confuse the
general public at large into believing that it is connected with the
plaintiff company in some manner, which led to the filing of the present
suit.
7. During the pendency of the matter, the CEO of the defendant Ms. Arpita
Kapoor has filed an affidavit in the form of an undertaking to the Court.
The relevant part of the undertaking reads as under:-
"That I undertake to this Hon'ble Court that the defendant, its
directors, employees, agents, distributors, franchisees,
representatives and assigns will:
(i). Never use our trademark "MECH MOCHA" in any business
connected with the food and beverages industry.
(ii). Not diversify into any business activity connected with the
food and beverages industry, under the trademark "MECH
MOCHA" and
(iii). Not apply for the registration of the trademark "MECH
MOCHA" before any statutory authority in respect of services
related to provision of food and beverages."
8. The learned counsel for the plaintiff on instructions submits that
the undertaking in the form of an affidavit may be accepted by the
Court and the suit may be disposed of based on the undertaking.
9. I have heard the learned counsel for the parties. Taking into
considerations the submissions made, the affidavit in the form of
undertaking of Ms. Arpita Kapoor is accepted by the Court. Ms.
Arpita Kapoor shall be bound by the terms of the undertaking.
10. The defendant has agreed that the defendant will not use the
trademark MECH MOCHA or any other deceptively similar name
in any business in relation to the food and beverages industry, as
agreed.
11. The present suit is accordingly disposed of. The defendant shall
be bound by the statement made in the Court.
12. The suit is disposed of.
G.S.SISTANI, J.
SEPTEMBER 29, 2016
P
