Triumphant Institute Of ... vs Www.Timeseducation.Co & Ors.
2017 Latest Caselaw 4495 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment delivered on: 28.08.2017
+        CS(COMM) 825/2016
TRIUMPHANT INSTITUTE OF MANAGEMENT
EDUCATION PVT LTD                  ..... Plaintiff
                      Through:
                             versus

WWW.TIMESEDUCATION.CO & ORS                                  ..... Defendants
Advocates who appeared in this case:

For the Plaintiff     :      Ms. Bitika Sharma and Mr. Lakshay Kaushik, Advs.

For the Defendant     :      Mr. Ankit Relan, Ms. Ekta Sharma and Ms. Ridhima, Advs.
                             for D-4

                             Mr. Sagar Chandra, Mr. Ankit Rastogi and Ms. Aastha
                             Bhasin, Advs. for proposed defendant no. 5

CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA

                                JUDGMENT

28.08.2017

SANJEEV SACHDEVA, J. (ORAL)

I.A. 3017/2017 (on behalf of Plaintiff under Order VI rule 17 CPC) & I.A. 3019/2017 (on behalf of Plaintiff under Order I rule

10)

1. The plaintiff has filed the suit seeking a restraint on the

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defendant from unauthorized and illegal adoption and use of the

plaintiff registered trademark T.I.M.E. and the registered domain

name 'TIME4EDUCATION.COM' by defendant no. 1 by adopting,

using and registering an identical and deceptively similar domain

name i.e. www.timeseducation.co.

2. It is contended that the plaintiff is in the service of providing

education and coaching classes. The plaintiff has a registered domain

name 'TIME4EDUCATION.COM'.

3. It is contended that someone had got registered a domain name

'www.timeseducation.co' which is deceptively similar to the domain

name of the plaintiff.

4. It is contended that when the plaintiff filed the suit, plaintiff

was not aware of the person who had got the said domain name

registered. All that was available was a telephone number.

5. It is submitted by learned counsel for the plaintiff that the

Cyber Cell of the Delhi Police has subsequently reported that the

telephone number belongs to 'Think and Learn Pvt. Ltd. (Byju's)', the ==========================================================

proposed defendant No. 5.

6. It is submitted that the proposed defendant is in the same field

as that of the plaintiff i.e. providing coaching and educational services

to students.

7. It is contended that the proposed defendant had got the domain

name - 'timeseducation.co' registered so as to ride upon the

reputation and goodwill of the plaintiff and take benefit there from.

8. It is in the above circumstances, plaintiff seeks impleadment of

proposed defendant 'Think and Learn Pvt. Ltd.' (Byju's) and the

consequential amendments to the Plaint.

9. Learned counsel submits that in view of the interim order dated

15.07.2016, whereby the use of the said domain name was restrained,

the proposed defendant stopped using the domain name and recently

the domain name was available for purchase and the plaintiff has now

purchased the same.

10. It is contended that when the suit was filed, the plaintiff was not

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aware that it is the proposed defendant who was using the domain

name 'www.timeseducation.co' and only on the report of the cyber

cell , the name of the proposed defendant surfaced and as such the

proposed defendant is a necessary and proper party.

11. Learned counsel appearing for the proposed defendant submits

that there is nothing to associate the proposed defendant with the said

domain name. He submits that though the phone number based on

which the application has been filed does belong to the proposed

defendant, however, prior to the acquisition of the said number,

inquiries have revealed, that the number was owned by several other

entities or persons.

12. He submits that nothing apart from the number associates the

proposed defendant with the said domain name. He further submits

that even as per the showing of the plaintiff, the domain name has

now been purchased by the plaintiff and the cause of action does not

survive any further.

13. The plaintiff has prima facie shown that the proposed defendant

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had an association with the impugned domain name

'www.timeseducation.co' through the telephone number, which

admittedly belongs to the proposed defendant.

14. The defence of the defendant that the said telephone number

was earlier belonged to other persons/entities or that there was no

connection of the proposed defendant with the said domain are pleas

on merit of the contention of the plaintiff, which are not required to be

examined at this stage.

15. The merits of the claim of the plaintiff or the defence of the

defendant have not to be considered at the time of considering the

application for amendment.

16. In view of the admitted association of the proposed defendant

with the telephone number connected with the impugned Domain

name, the proposed defendant is clearly a necessary and proper party

to the Suit and presence of the proposed defendant is necessary for the

purposes of truly and effectively deciding the issues that arise in the

Suit.

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17. The plaintiff as well as the proposed defendant is in the same

field of business i.e. providing education services and running

coaching classes. Furthermore, as per the cause of action paragraph in

the plaint, the claim of the plaintiff even if filed today would be within

limitation from the date the cause of action has arisen.

18. Furthermore, in order to avoid multiplicity of litigation, it

would be expedient to allow the application and to implead the

proposed defendant.

19. Accordingly, both the application for impleadment of the

proposed defendant and the application seeking consequential

amendments to the plaint are also allowed. Proposed defendant No. 5

'Think and Learn Pvt. Ltd. (Byju's)' is impleaded as defendant No. 5.

The Plaintiff is also permitted to amend the plaint as stated in the

application.

20. The applications are accordingly allowed.

CS(COMM) 825/2016

21. Let the amended memo of parties as well as the amended plaint ==========================================================

be filed within a period of one week.

22. Written statement to the amended plaint be filed by the

defendants as well as by the newly added defendant within the

statutory period.

23. The newly added defendant shall file the original documents

along with the written statement. Replication to the written statement

be filed within a period of two weeks.

24. Learned counsel for plaintiff submits that since the plaintiff has

already purchased the domain name 'timeseducation.co', the cause of

action qua defendants No. 2 and 3 does not survive any further and

she seeks deletion of defendants No. 2 and 3 from the array of parties.

25. Accordingly, defendants No. 2 and 3 are deleted from the array

of parties. In the amended Memo of Parties, in front of the names of

Defendants No. 2 and 3, the Plaintiff shall make an endorsement that

they have been deleted from the array of parties by the order of

today's date.

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26. The parties shall file their affidavits of admission/denial of

documents within two weeks of the filing of replication.

27. List before the Joint Registrar for marking exhibits, if any, on

the documents on 09.11.2017.

28. List before Court on 19.01.2017 for framing of issues.

I.A. 7324/2017 (application on behalf of Defendant No. 4 under

Order XIII-A CPC)

29. Issue notice. Notice is accepted by learned counsel for the

plaintiff who prays for time to file reply.

30. Let reply be filed within four weeks. Rejoinder, if any, be filed

within two weeks.

31. List before Court on 19.01.2017

SANJEEV SACHDEVA, J AUGUST 28, 2017 'rs'

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