Bennett Coleman & Company Limited vs M. Akram Pasha
2018 Latest Caselaw 4650 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(COMM) 828/2018 & I.A. 5748/2018
       BENNETT COLEMAN & COMPANY LIMITED ..... Plaintiff
                   Through: Mr. Kr. Shashank Shekhar with
                            Mr.Kunal Tandon and
                            Mr.Shashank Shekhar, Advocates.

                          versus

       M. AKRAM PASHA                                       ..... Defendant
                    Through:             None

%                                  Date of Decision: 08th August, 2018

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                            JUDGMENT

MANMOHAN, J: (Oral) I.A.No.10584/2018

1. Today, in court learned counsel for the plaintiff has filed an application under Order XIIIA, Rules 2, 4 & 6 of CPC seeking summary judgment. The same has been numbered by the Registry. Since the defendant is ex parte, the said application is taken up for hearing and disposal.

2. It is pertinent to mention that the present suit has been filed for permanent injunction restraining infringement of trademark and copyright, passing off and trademark dilution, rendition of accounts of profit, damages, delivery up, etc. The prayer clause is reproduced hereinbelow:-

"(a) Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendant permanently restraining the Defendant, their directors, agents, officers, employees, cable operators, multi system operators, direct to home operators and all such other persons associated with or in conjunction with the Defendant from adopting and using the channel name NATIONAL TIMES NOW or any other mark or name which is identical or deceptively similar to the Plaintiff's channel name/registered mark NOW, TIMES/S and/or TIMES NOW, etc. so as to result in infringement and/or passing off or dilution;

(b) Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants permanently restraining the Defendants, their directors, agents, officers, employees, cable operators, multi system operators, direct to home operators and all such other persons associated with or in conjunction with the Defendants from adopting and using the channel name NATIONAL TIMES NOW or any other mark or name in a logo style, format, font or get up, colour scheme which is a colourable imitation or substantial reproduction of the Plaintiff's TIMES NOW logo, get up and colour scheme so as to result in infringement of copyright in the same;

(c) Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants permanently restraining the Defendants, their directors, agents, officers, employees, cable operators, multi system operators, direct to home operators and all such other persons associated with or in conjunction with the Defendants from adopting and using the Plaintiff's registered trademark NOW, TIMES and/or TIMES NOW, etc, either as singly or in conjunction with any other word or mark, or any deceptive variant of the well known trade mark NOW, TIMES and TIMES NOW, etc. or by suffixing or prefixing with any other word, mark, logo or with any other mark of the Plaintiffs, as a trademark or trading style or domain name or key words or metatags,

amounting to infringement, passing off and dilution of the Plaintiff's trademarks;

(d) Pass a decree of permanent injunction in favour of the Plaintiffs and against the Defendants permanently restraining the Defendants and their directors, Partners, Officers, Employees, Agents, Licensees, Cable Operators, Franchisees or any other person acting for and or their behalf from using any of the domain name "www.nationaltimesnow.com" or any other website/domain name which are identical and/or confusingly similar with the Plaintiff's domain name/website timesnow.tc;

moviesnow.co.in; romedynow.com;

economictimes.indiatimes.com/et-now or any other name in similar fashion for any internet site or social media site, account or handle;

(e) Pass a decree of delivery up in favour of the Plaintiff and against the Defendants directing the Defendants to deliver up all the impugned goods, articles and items that have upon it, mark that is identical/deceptively similar to that of the Plaintiffs' mark NOW, TIMES and/or TIMES NOW, etc. or any other material infringing the rights of the Plaintiffs, lying in the possession of the Defendants and their principal officers, directors, agents, franchisees, servants etc.

(f) Pass a decree of rendition of accounts in favour of the Plaintiff and against the Defendants directing the Defendants to render all accounts of profits illegally earned by the Defendants on account of their infringing activities and a decree for the amount ascertained by this Hon'ble Court be passed against the Defendants and in favour of the Plaintiffs

(g) Pass a decree of permanent injunction restraining the Defendants from transferring, alienating or in any manner creating any third party interest in any domain name currently in use by the Defendants which causes confusion

or deception with the Plaintiff's stated domain names and websites;

(h) Pass a decree directing the Defendants to pay a sum of Rs.2,00,00,000/- towards damages to the Plaintiffs;

(i) Costs of this Suit may be awarded to the Plaintiff;

(j) Any further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case be passed in favour of the Plaintiff."

3. Vide order dated 27th April, 2018, this Court granted an ex parte ad interim injunction in favour of the plaintiff and against the defendant. The relevant portion of the ex-parte injunction order is reproduced hereinbelow:-

"Consequently, till further orders, the defendant, his directors, agents, officers, employees, cable operators, multi system operators, direct to home operators and all such other persons associated with or in conjunction with the defendants are restrained from adopting and using the channel name NATIONAL TIMES NOW or any other mark/name which identical or deceptively similar to the plaintiff's channel name/registered mark NOW, TIMES, and/or TIMES NOW as a trademark or trading style or domain name or key words or metatags.

Let the provisions of Order 39 Rule 3 CPC be complied within a week.

Order dasti under signature of Court Master."

4. Since despite service, none appeared for the defendant, the defendant was proceeded ex-parte on 06th August, 2018. On the said date, learned counsel for the plaintiff stated that he would be satisfied if

the present suit is decreed in accordance with prayers (a) to (d) and (g) of the prayer clause to the suit.

5. This Court is also of the view that the present suit can be disposed of without any further delay. A Coordinate Bench of this Court in Satya Infrastructure Ltd. and Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 SCC OnLine Del 508 has held as under:-

"I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in-chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction."

6. The relevant facts of the present case are that the plaintiff is popularly known as the 'Times Group' Company which has been in print media since 1838. It is stated that the plaintiff runs several print publications such as Times of India, Economics Times, Nav Bharat Times and is also engaged in television broadcasting and distribution services for its channels, which is collectively and popularly known as the 'Times Network'. It is stated that the plaintiff is India's largest media conglomerate and owns and operates an English news channel TIMES NOW as well as other channels such as ET Now, Movies Now, Romedy Now etc.

7. It is stated that the plaintiff has been using the trademark TIMES for almost 180 years and the marks TIMES NOW and NOW since 2006 for its diverse media activities including print, television channels, digital media, internet media, Out of Home media, on ground events, etc. It is stated that the plaintiff is the registered owner of marks NOW and TIMES NOW in several combinations under various Classes of the Trade Marks Act, 1999. It is stated that the marks TIMES, NOW and TIMES NOW are an essential element of the plaintiff's brand and the aforesaid marks are affixed to almost every one of its channel names to differentiate them from others. It is stated that due to continuous and uninterrupted use, in different combinations, as a suffix, prefix and part of its logo or channel name, the plaintiff's marks TIMES, NOW and TIMES NOW have acquired distinctiveness and have become a source identifier of the plaintiff's business and channels.

8. It is stated that the plaintiff's logo for its channels is an 'artistic work' within the meaning of Section 2(c) of the Copyright Act, 1957 and the plaintiff is entitled to protection in the said work.

9. It is stated that the plaintiff's marks are also used on digital and social media platforms such as http://www.timesnownews/com/, www.Zoomtv.com, www.economictimes,indiatimes.com, Youtube, Facebook, Twitter etc.

10. It is averred in the plaint that the plaintiff has incurred huge expenditure in promotion and advertisement of its brand and by virtue of the same, there is a world-wide and instant brand recall of the plaintiff's channels and millions of viewers identify the channels suffixed with Trade Marks 'Times, 'Now' and 'Times Now' with the plaintiff.

11. Learned counsel for the plaintiff states that in April, 2018, it came to the plaintiff's knowledge that the defendant is operating a YouTube channel at http://www.youtube.com/channel/UC1_qZc0trla, N8gI1LUPYyg) and website www.nationaltimesnow.com under the name NATIONAL TIMES NOW. He states the defendant has launched a news portal under the name NATIONAL TIMES NOW as a first step to enter the news media world and intends to launch a news channel by the same name.

12. Learned counsel for the plaintiff states that the plaintiff issued cease and desist notices dated 19th April, 2018 and 21st April, 2018, to the defendant against use of the registered trademarks TIMES, NOW, TIMES NOW along with other registered marks. He states the plaintiff subsequently sent a follow up email, however till date no reply has been received.

13. Learned counsel for the plaintiff states that the defendant's channel name NATIONAL TIMES NOW is identical/deceptively similar to the names of various channels and websites of the plaintiff i.e. TIMES NOW, TIMES NOW HD, ET NOW, MOVIES NOW etc. He states that TIMES NOW forms a dominant and essential part of the names of the plaintiffs' channels and whether used as a prefix or suffix or as a logo or written in a different style or colour combination, to the viewer/consumer, the defendant's mark is similar to the plaintiff's and the same is likely to cause confusion amongst the public that the defendant's channel NATIONAL TIMES NOW is owned/associated/connected with or operated by the plaintiff.

14. Learned counsel for the plaintiff states that the defendant has adopted the name NATIONAL TIMES NOW with the malafide intent to gain mileage from the goodwill and reputation of the plaintiff under the marks TIMES, NOW, and TIMES NOW.

15. Learned counsel for the plaintiff states that the defendant's channel and website are accessible all over India, including from New Delhi.

16. In the opinion of this Court, the defendant has no real prospect of defending the claim, as it has neither entered appearance nor filed its written statement. Further, the plaintiff is the registered user of the trade marks in question.

17. In view of the above, the present suit is decreed in favour of the plaintiff and against the defendant in accordance with paragraph (a) to (d) and (g) of the prayer clause of the present plaint along with actual cost and court-fees paid. Registry is directed to prepare a decree sheet accordingly.

18. With the aforesaid observations, present suit and pending application stand disposed of.

MANMOHAN, J AUGUST 08, 2018 mn/rn