Delhi High Court
Shammi Narang & Anr vs Pindropmusicapp Private Limited on 11 August, 2017
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) (COMM) 158/2017
Date of decision: 11th August, 2017
SHAMMI NARANG & ANR ..... Appellants
Through Mr. Giriraj Subramanium and
Mr. Simarpal Singh Sawhney, Advocates.
versus
PINDROP MUSIC APP PRIVATE LIMITED ..... Respondent
Through Mr. Shiv Johar and Ms. Smriti
Jain, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. ( ORAL)
This intra-Court appeal impugns order dated 22nd May, 2017
whereby IA No.2284/2017 filed by the appellant under Order XXXIX
Rules 1 & 2 Code of Civil Procedure, 1908 (Code, for short) has been
dismissed and the application, IA No.5744/2017, filed by the
respondent under Order XXXIX Rule 4 of the Code has been allowed
thereby vacating the ex-parte interim order.
2. The appellant, who is the plaintiff, has filed the suit for
infringement and passing off of trade mark "Pindrop" against the
respondents, who is the defendant.
FAO (OS)(COMM) 158/2017 Page 1 of 4
3. The appellant is the proprietor of the registered trade mark
"Pindrop" in Class 41 (Entertainment and Media Solutions).
Application for registration was made on 07th November, 2014 and
was granted on 23rd August, 2016.
4. The respondent is the proprietor of the registered trade mark
"Pindrop Music" in Class 42 (Mobile and Computer Software). The
respondent made the said application on 27th January, 2016 and was
granted registration on 13th February, 2017.
5. The appellant states that he has been using the trademark
"Pindrop" since 1998.
6. The respondent claims that they have been using the trademark
since 2015. The respondent asserts that they had developed a concept
of music software mobile application in the year 2014 and had
launched their website in January, 2015. The respondent has pleaded
that the name "Pindrop Music" adopted by them, was selected after
much deliberation and careful thought. The software allows the users
to select songs by dropping pins on a map and other users of the
application gain knowledge of trending music being heard around
them.
7. What has primarily weighed with the Single Judge in the
impugned order is the fact that the appellant's have a recording studio
by the name of PINDROP and is engaged in business of recording
high quality video, graphics and sound tracks . The respondent on the
other hand has developed the mobile application software, which can
FAO (OS)(COMM) 158/2017 Page 2 of 4
be used by mobile users. The software enables the listener to listen to
the music according to his mood. We would observe that the target
consumers and users of the appellant and respondent are different and
possibility and chance of confusion does not arise. The customers of
the appellant and the respondent are knowledgeable, and are distinct
and separate.
8. The suit for injunction was filed by the appellant on 10th April,
2017 and the respondent has been in business since 2015. The
business and trade mark of the respondent was not hidden or
concealed as the software application was freely downloadable.
9. The respondent has spent more than Rs.20,00,000/- on publicity
and advertising in the last two years. The appellants as per the
impugned order have incurred expenditure of Rs. 2,00,000/-on
publicity/advertising. Counsel for the appellant has submitted this is
incorrect and the appellant had spent about Rs.20,00,000/- since 1998
on marketing and advertising. However, it is accepted that the
appellant has not filed invoices, certificate of the Chartered
Accountant etc. to substantiate the said figure.
10. The impugned order records that the respondent has clientele of
more than 14 lakh users. The respondent thus profess that they are
one of the leading startup ventures in the aforesaid technology
domain. Any interim injunction would virtually destroy and annihilate
this start up venture. Balance of convenience has to be weighed, and
is in favour of the respondent.
FAO (OS)(COMM) 158/2017 Page 3 of 4
11. Further, the word "Pindrop" as noticed is a common dictionary
word, which is fairly well known and frequently used. The word is
connected and associated with sound. Monopoly of the said word by a
single person may not be justified. It does not prima facie appear, that
the respondent has acted in a manner to take advantage or benefit of
"good will " and reputation of the appellant to gain acceptance and
market the software developed by them.
12. In view the aforesaid, we do not think that the impugned order
passed by the single Judge requires interference. However, we clarify
that the observations made in this order and the order of the single
Judge are prima facie in nature and would not be treated as binding
and conclusive findings. Recording this clarification, we dismiss the
appeal without any order as to costs.
SANJIV KHANNA, J.
NAVIN CHAWLA, J.
AUGUST 11, 2017
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