Living Media India Limited & Anr vs P Kaushik
2017 Latest Caselaw 6508 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Date of Decision: 16.11.2017
+      CS(COMM) 989/2016
       LIVING MEDIA INDIA LIMITED & ANR                  ..... Plaintiffs
                         Through      Mr. Chander Lall Sr. Adv with and Mr.
                                      Sajad Sultan, Advs.

                         versus

       P KAUSHIK                                         ..... Defendant
                         Through      None.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. Arguments have been heard in the suit. Despite service none has appeared on behalf of Defendant. Since, Defendant did not appear, he was proceeded ex parte vide order dated 15.01.2015.

2. The present suit is filed by the Plaintiff for permanent injunction restraining the Defendant from infringement and passing off trademark "AAJ TAK" or any other trademark deceptively similar to the Plaintiff's registered trademark "AAJ TAK" in relation to magazine, newspaper, journal etc.

3. It is the contention of the Plaintiffs that Plaintiff no.1 is a company incorporated under the Companies Act, 1956 which is one of the major media corporations in India with enormous commercial interests in both print and electronic media. They are engaged in diverse business activities ranging from

printing and publishing of Magazines, Journals, Periodicals and Newspapers, to the running of News Channels, Infotainment programmes, holding of Conferences, Seminars, etc. company incorporated under the Companies Act, 1956 which is a subsidiary of Plaintiff no. 1, running various electronic news channels which are popular among the masses.

4. It is the contention of the Plaintiff no.1 that they are the registered owner of immensely popular trademark "AAJ TAK" which has been licensed to Plaintiff no.2 for running a 24 hour Hindi news channel vide license agreement dated 01.10.2003. Plaintiff no.2 is the permitted user of the registered trademark "AAJ TAK".

5. It is contended by the Plaintiffs that the Defendant is an individual who claims to own, print and publish weekly magazine "Nazar AAJ TAK" as the Editor-in-chief of the said magazine.

6. It is the contention of the Plaintiffs that they recently came to know of the infringement and violation of their trademark by the Defendant when a promotional email was sent to many people including an employee of Plaintiff no.2 on 14.03.2014 from email id "[email protected]". It is from this email the Plaintiffs came across a copy of the Weekly Hindi Magazine titled "Nazar AAJ TAK" owned, printed and published by Defendant.

7. It is the contention of the Plaintiffs that the said act of Defendant is not only dishonest, illegal and malafide but clearly infringes upon the Intellectual Property Rights of the plaintiffs.

8. Plaintiffs further contented that the Plaintiff no.1 has been in media business for over 4 decades and has earned a huge and unparallel reputation not only in India but across the world. Plaintiff no.1 has been using the trademark

"AAJ TAK" since 1995 and has since then continuously and uninterruptedly used the said trademark. Plaintiff no.1 is the registered proprietor of the trademark "AAJ TAK" alongwith various other composites in various classes which are mentioned in the plaint within the meaning of Section 2(zg) of the Trade marks Act, 1999. It is stated that the said trademark, "AAJ TAK" news channel has been voted the best Hindi channel continuously since 2001 by the Indian Television Academy. It has also earned many accolades and awards for its content and consistent world class broadcasting. The said channel has its operations run not only in India but it is broadcasted in foreign countries like USA, UK, Canada, France, Japan, Dubai, etc. Plaintiffs also run various other news channels including "AAJ TAK TEZ" and "DILLI AAJ TAK".

9. It is the contention of the Plaintiffs that they have spent considerable amounts of money on advertising and promoting the said trademark "AAJ TAK" breakup of which is mentioned in para 21 of the plaint. The said trademark has generated huge business for the Plaintiffs as reflected in the yearly sales figures of the Plaintiff no.2 breakup of which is mentioned in para 22 of the plaint.

10. It is also stated that Plaintiffs have developed a website "www.aajtak.com" which not only gives information about the Plaintiffs and their services but also disseminates news and headlines online. It is stated that the said website has been accessed by approximately 5,21,60,92,547 users between 01.12.2012 till 12.04.2015.

11. It is the contention of the Plaintiffs that the said trademark "AAJ TAK" has earned the status of a "Well- Known Trademark" and commands the highest level protection irrespective of the class they have been applied for or

used.

12. It is also contended that the impugned trademark "Nazar AAJ TAK" is deceptively similar to the Plaintiffs' registered trademark "AAJ TAK". It is further stated that the defendant is using the said trademark for similar goods, services and business as that of the Plaintiffs. It is stated that the Defendant is clearly trying to ride and encash the goodwill earned by the Plaintiffs over a long period of use.

13. It is further stated that the Plaintiffs are also registered owners of "TODAY", "INDIA TODAY", "TELEVISION TODAY", "BUSINESS TODAY", etc, implying the importance of "TODAY" (AAJ) for the Plaintiffs.

14. It is also stated that the Plaintiffs have issued a notice to the Defendant for using deceptively similar trademark for absolutely similar services. Consequently a Cease and Desist notice dated 19.03.2014 was issued by the Plaintiffs vide email and Registered AD to which the Defendant replied and asked them to get in touch. The Plaintiffs informed the Defendant about their trademark and its illegal use by the Defendant but the Defendant failed to act upon the notice and continued to use the impugned trademark.

15. Dr. Puneet Jain, Head (Legal & Compliance & CS) & Vice- President- Internal Audit with the Plaintiff no.2 company, has led evidence on behalf of the plaintiffs as PW1/X. He has stated that the Plaintiff no.1 has been into the media business for over three decades and has acquired huge and unparallel reputation not only in India but across the world. He states that the Plaintiff no.1 is the prior and honest adopter of the immensely popular and established trademark "AAJ TAK" since 1995 and has since then continuously and uninterruptedly used the said trademark. He states that Plaintiff no.1 is the

registered proprietor of "AAJ TAK" alongwith various composites. Copy of the legal proceeding certificates of few registrations are placed on record as Ex. PW-1/4 (Colly). He further states that the said trademarks have been licensed by plaintiff no.1 to Plaintiff no.2 for running a 24 hour Hindi news channel vide license agreement dated 01.10.2003 which is exhibited as Ex.PW-1/5. It is further stated that the "AAJ TAK" news channel has been voted "Best News Channel" continuously since 2001 by the Indian Television Academy. Copy of few certificates is exhibited as Ex.PW-1/8. Similarly, it is also stated in the affidavit that "AAJ TAK" has also earned various accolades and awards; copy of few awards and felicitations are placed on record as Ex.PW-1/9. It is further stated that the Plaintiffs have spent considerable amounts of money on advertising and promoting the said "AAJ TAK" name. It is also stated that "AAJ TAK" has generated huge business for the Plaintiffs. The annual reports for the years 2004-05 to 2012-13 and the annual reports reflecting the sales figures for the years 2009-10 to 2012-13 are placed on record as Ex.PW-1/10 (Colly). It is stated that the Plaintiffs have successfully obtained various orders/ decrees against parties for using "AAJ TAK" or similar trademark. Copy of few injunction orders passed by various courts is exhibited as Ex.PW- 1/11(colly). Copy of the Cease and Desist Notice dated 19.03.2014 sent by the Plaintiffs alongwith the postal receipt and the email are also placed on record as Ex.PW-1/12(Colly).

16. Ms. Himani, d/o Sh. Vinod Kumar, working as Data entry Operator, Trade Mark Registry, Dwarka has been examined on 24.11.2016. She states that she has brought 11 trade mark legal proceeding certificates exhibited as Ex. PW-2/1 (colly), PW-2/2 and PW-2/3.

17. In view of the averments made in the plaint and the un-rebutted evidence filed by the Plaintiffs, the Plaintiffs have established that they are the registered proprietor of the said trade mark "AAJ TAK", thus they have a statutory right to the exclusive use of the same. The mark "Nazar AAJ TAK" used by the Defendants is structurally, visually and phonetically identical to the registered trade mark of the Plaintiffs "AAJ TAK". There is a clear violation of the rights of the Plaintiffs. It is also clear that the plaintiffs have been using their mark since 1995. The act of the Defendants lacks bonafide. The goods and services sold by the Defendants using the deceptively similar trade mark will also lead to passing off the goods and services of Defendants as that of the Plaintiffs.

18. Accordingly, a decree of permanent injunction is passed in favour of the Plaintiffs and against the Defendants restraining the Defendants, its heirs, representatives, directors, employees, agents from using the trademark "Nazar AAJ TAK"; "AAJ TAK"; "[email protected]" or any other trademark deceptively or phonetically similar to the Plaintiffs' registered trademark "AAJ TAK" in relation to magazine, newspaper, journal, news or any other media related services.

19. The Plaintiffs shall be entitled to costs of the suit. The plaintiffs may file a bill of costs. Suit stands disposed of accordingly.

JAYANT NATH, J NOVEMBER, 16, 2017 Sar