Delhi High Court
D.B. Corp. Ltd. vs Dainik Divya Bhaskar & Anr. on 21 December, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st December, 2018
+ CS(COMM) 1061/2018
D.B. CORP. LTD. ..... Plaintiff
Through: Mr. Rahul Malhotra, Advocate (M-
9899218215)
versus
DAINIK DIVYA BHASKAR & ANR. ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The Plaintiff has filed the present suit seeking permanent injunction in
respect of the trademark „DAINIK BHASKAR‟ and „DIVYA BHASKAR‟. The
case of the Plaintiff is that it is a recognized media company and has several
publications by the name 'DAINIK BHASKAR', 'DIVYA BHARTI',
'SAURASHTRA SAMACHAR, 'DNA' etc. The marks „DAINIK
BHASKAR‟ and „DIVYA BHASKAR‟ have been in use since 1958 according
to the Plaintiff. The Plaintiff also uses two domain names/trade name
'www.dainikbhaskar.com‟ and „www.divyabhaskar.com‟. The Plaintiff has
several trademarks registered for various derivatives of the said marks i.e.
'DAINIK BHASKAR', 'DAINIK BHASKAR GROUP', 'DIVYA
BHASKAR' in classes 16, 41, 42, 35 and 38. The detailed facts in respect of
the sales and advertising figures have also been given in the plaint which
show that the Plaintiff enjoys enormous goodwill and reputation.
2. The Plaintiff learnt of the use of the mark
„www.dainikdivyabhaskar.com‟ as a domain name/trade name by the
Defendants. It was claimed in the said website that the use of the domain
name/ trade name dates back to 2016. The Defendants are not only using an
identical mark and domain name/ trade name which is a combination of the
two marks „DAINIK BHASKAR‟ and „DIVYA BHASKAR‟ but also have
copied the colour scheme of website which is in blue and black colour
combination. A legal notice was issued by the Plaintiff on 8th June, 2018 and
the only reply by the Defendants is that the domain name/ trade name was
purchased by them from a registering authority called www.godady.com.
The Defendants also claimed user of the impugned domain name/trade name
since 2016. The use of the mark „dainikdivyabhaskar.com‟ coupled with the
use of an identical layout and colour combination of the website shows that
the usage is not bona fide. Accordingly, this Court on 3rd August, 2018 had
granted an injunction in the following terms:
"12. The Plaintiffs have made out a prima facie
case. Balance of convenience is in favour of the
Plaintiff. Irreparable harm would be caused if the
Defendants change the status of the domain name.
Accordingly, the Defendants are restrained from using
the name "Dainik Divya Bhaskar" as a trade
mark/service mark/trading style or the domain name
www.dainikdivyabhaskar.com or any other mark/name
deceptively similar to the Plaintiff‟s marks, either in
relation to online news services or publications in the
print/electronic media. The injunction, however, will
come into operation w.e.f. 20th August, 2018 in order to
enable the Defendants to move the contents to a
different platform, should they wish to do so. The
Defendants are further restrained, with immediate
effect, from transferring, alienating or creating any
third party interest in the domain name
"www.dainikdivyabhaskar.com" or any other mark or
logo which is similar with the Plaintiff‟s mark.
Compliance of Order XXXIX Rule 3 shall be done
within 3 days."
3. The Defendants had thereafter put in appearance and had made a
statement on 19th September, 2018 that they are willing to settle the matter.
However, no settlement took place and the written statement was also not
filed.
4. It is now the settled position that if the Defendant chooses not to file
the written statement, it is not necessary in every case to direct the Plaintiff
to file its evidence. This has been held by this Court in Everstone Capital
Advisors Pvt Ltd. & Anr v Akansha Sharma & Others CS (COMM)
1028/2016, Decided on 17th July, 2018. In the said decision, the Court had
held as under:
"Under the extant provisions of the CPC, the
Plaint is supported by an affidavit and in the
absence of any rebuttal or challenge, the Court
can take the averments in the Plaint to be correct.
Moreover, the documents for eg. Registrations of
trade marks being public documents, are easily
verifiable and the so-called formality of filing
affidavit in evidence for marking of exhibits can
be dispensed with."
A similar view has been taken by this Court in VRS Food Ltd. v Prem
Chand CS (COMM.) 365/2016 Decided on 30th August, 2018.
5. The Plaintiff has placed a large number of documents on record
including from publicly available sources such as the Trademark Registry to
show its rights in the marks „DAINIK BHASKAR‟ and „DIVYA BHASKAR‟.
The newspapers of the Plaintiff are also published on a daily basis, a fact
which this Court can take judicial notice of. Moreover, the websites of the
Plaintiff and Defendants are accessible and the infringement was clear. From
the documents placed on record, there is no doubt that the Plaintiff owns the
marks „DAINIK BHASKAR‟ and „DIVYA BHASKAR‟. The use of the domain
name/ trade name „dainikdivyabhaskar.com‟ is in violation of both the
statutory and common law rights of the Plaintiff. The website of the
Defendants has already been pulled down. This was recorded on the last date
i.e. 30th November, 2018.
6. Under these circumstances, the Plaintiff is entitled to a decree of
permanent injunction in terms of paras (a) and (b) of the plaint. The Plaintiff
has incurred legal costs in the present case including Court fee. The
Defendants after putting appearance has stopped appearing and have also
failed to file written statements. Under these circumstances, costs of Rs.5
lakhs are awarded to the Plaintiff.
7. The suit is decreed in the terms stated above. Decree sheet be drawn
accordingly. All pending I.A.s are disposed of.
PRATHIBA M. SINGH
JUDGE
DECEMBER 21, 2018
Rahul
