Delhi High Court
Living Media India Limited & Anr vs Mandeep Kaur & Anr. on 16 November, 2018
$~A-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 16.11.2017
+ CS(COMM) 990/2016
LIVING MEDIA INDIA LIMITED & ANR ..... Plaintiff
Through Mr. Chander Lall, Sr.Adv. with Mr.Sajad
Sultan, Adv.
versus
MANDEEP KAUR & ANR. ..... 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 Defendants. Since, Defendants did not appear, they were
proceeded ex parte vide order dated 17.09.2014.
2. The present suit is filed by the Plaintiffs for permanent injunction
restraining the Defendants from infringement and passing off trademark "AAJ
TAK" or any other trademark deceptively similar to the Plaintiffs' 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. Plaintiff no.2 is a 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 no.1 is an individual
who claims to own, print and publish fortnightly magazine "AAJ TAK
AAMNE SAAMNE". Defendant no.2 claims to be the Chief MD of the said
magazine and owner/ registrant of the domain name "aajtakaamnesaamne.com"
as per Whois database. It is stated that the said domain name was created on
22.01.2014
6. It is the contention of the Plaintiffs that they recently came to know of the
infringement and violation of their trademark by the Defendants when a email
was sent to an employee of Plaintiff no.2 on 08.04.2014 by Defendant no.2. It is
also stated that the Defendants are using various other email ids similar to
Plaintiff's trademark.
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 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. 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 "AAJ TAK AAMNE
SAAMNE" is deceptively similar to the Plaintiffs' registered trademark "AAJ
TAK". It is further stated that the Defendants are using the said trademark for
similar goods, services and business as that of the Plaintiffs. It is stated that the
Defendants are 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 Defendants
for using deceptively similar trademark for absolutely similar services.
Consequently a Cease and Desist notice dated 09.04.2014 was issued by the
Plaintiffs vide email and Registered AD to which the Defendants replied on
10.04.2014 and asked them to get in touch. The Plaintiffs informed the
Defendants about their trademark and its illegal use by the Defendants but the
Defendants 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 09.04.2014 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 cross 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 "AAJ TAK AAMNE SAAMNE" 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 are sold under 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 "AAJ
TAK AAMNE SAAMNE"; "AAJ TAK"; "aajtakaamnesaamne.com" 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. Plaintiffs shall also be entitled to damages of
Rs.1 lac. A decree for Rs.1 lac is accordingly passed in favour of the Plaintiffs
and against the Defendants. The Plaintiffs shall also be entitled to interest @ 8
per cent per annum simple from the date of decree till payment is received.
19. The Plaintiffs shall be entitled to costs of the suit. Suit stands disposed of
accordingly.
JAYANT NATH, J
NOVEMBER 16, 2017
Sar
