M/S Ambience Pvt Ltd vs M/S Hotel Ambience & Ors
2018 Latest Caselaw 5690 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(COMM) 548/2018 & I.A.Nos.6364/2013, 4310/2018

       M/S AMBIENCE PVT LTD                     ..... Plaintiff
                    Through: Mr.Abhishek Bhardwaj, Advocate.

                          versus

       M/S HOTEL AMBIENCE & ORS                         ..... Defendants
                    Through: None

%                              Date of Decision: 19th September, 2018

CORAM:
[




HON'BLE MR. JUSTICE MANMOHAN

                          JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for permanent injunction restraining infringement of trademark, passing off, rendition of accounts of profit, damages and delivery up. The prayer clause is reproduced hereinbelow:-

"a) A decree of permanent injunction restraining the Defendants, their servants, agents, and employees from advertising, offering, providing and marketing, directly or indirectly dealing in promotion and offering their services under the trade mark „Hotel Ambience‟ or any other trade mark identical, deceptively and/or confusingly similar to the registered marks of the Plaintiff thereby infringing the registered marks of the Plaintiff.

b) A decree of permanent injunction restraining the Defendants, their servants, agents and employees from

advertising, offering, providing and marketing, directly or indirectly dealing in promotion and offering their services under the trade mark „Hotel Ambience‟ or any other trade mark identical, deceptively and/or confusingly similar to the mark of the Plaintiff‟s trade marks „AMBIENCE‟, „AMBIENCE DESIRE ENGINEERS‟, „AMBIENCE LAGOON‟, „AMBIENCE ISLAND‟, „AMBIENCE CENTRE‟, „AMBIENCE PLATINUM TOWER‟, „AMBIENCE CITY CENTRE‟, „AMBIENCE CORPORATE TOWER‟, „AMBIENCE TOWER‟, „AMBIENCE MALL‟, „AMBIENCE RESIDENCY;, „AMBIENCE HEIGHTS‟, OR „AMBIENCE CITY‟ amounting to passing off the Defendants services as those of the Plaintiff‟

c) An order for rendition of accounts of profit illegally earned by the Defendants and a decree in terms of the said amount after ascertainment of the amount;

d) A decree of delivery up of all the infringing materials, including brochures, catalogues and all blocks, dies and all such articles employed by Defendants in applying the trade mark „Hotel Ambience‟ and promotional material thereof to an authorized representative of the Plaintiff for destruction/erasure;

e) An order directing the Defendants to transfer/surrender the infringing domain name www.hotelambience.com and any other similar infringing domain name in favour of the Plaintiff; and to withdraw any and all applications for registration of the mark „AMBIENCE‟ or any other mark which is deceptively similar thereto and to withdraw any and all applications, petitions, registrations, incorporating in any way, shape, or form Plaintiff‟s mark „AMBIENCE‟ or any mark deceptively similar thereto.

f) An order for Damages for an amount of Rs.20,05,000/- to be passed against the Defendants and in favour of the Plaintiff;

g) For costs of the proceedings to be assessed and granted in favour of the Plaintiff; and

h) Any further orders in the interests of justice."

2. Vide order dated 04thJanuary, 2018, this Court granted an ex parte ad interim injunction in favour of the plaintiff and against the defendants. The relevant portion of the ex-parte injunction order is reproduced hereinbelow:-

"Consequently, till further orders defendants, their servants, agents, employees, attorneys etc. are restrained from using the mark „AMBIENCE‟ or any other mark deceptively or confusingly similar to the registered marks of the plaintiff."

3. After partially cross-examining PW-1, the counsel for the defendants moved an application for discharge, which was allowed vide order dated 30th May, 2018. Thereafter, the matter has been placed before the Court.

4. Since none is present for the defendants despite a pass over, they are proceeded ex parte.

5. Today, learned counsel for plaintiff prays to file additional evidence. However, in view of Order XVIII Rule 4(1A) CPC, the plaintiff was required to file its entire evidence simultaneously i.e. at one go. Therefore, the said prayer is declined.

6. The relevant facts of the present case are that, the plaintiff company is a parent company of the 'Ambience Company' which is

one of country's leading real estate group. It is averred in the plaint that the Ambience group is known for its integrated Townships, Residential and commercial complexes, Hospitality, Facility and management under its mark 'AMBIENCE'. It is further averred that the total turnover of the plaintiff under its mark 'AMBIENCE' is in excess of one thousand crore.

7. It is stated that the plaintiff is the registered proprietor of the mark 'AMBIENCE' under various classes of the Trade Marks Act, 1999.

8. Learned counsel for the plaintiff states that in August 2010, the plaintiff found that defendants were running a hotel i.e. 'Hotel Ambience' at C-12, Panchsheel Enclave, New Delhi-17. He states that the defendants had also illegally registered the domain name www.hotelambience.com.

9. Learned counsel for the plaintiff states that the plaintiff issued a legal notice dated 04th August 2010, to the defendants. He states that the defendants sent a frivolous reply on 2nd September, 2010 and continued to use the mark 'AMBIENCE'. He states that the plaintiff once again issued a cease and desist notice to the defendants on 12th December, 2012 to which no response was received.

10. The plaintiff filed the present suit on 18th April, 2013. The defendants filed a written statement stating that they had changed the name of their hotel from 'HOTEL AMBIENCE' to 'HOTEL EXCELLENCE'.

11. Vide order dated 20th November, 2014, the following issues were framed:-

"(i) Whether the defendants have infringed the trademark „AMBIENCE‟ of the plaintiff falling in Class 43? OPP

(ii) Whether the defendants are guilty of passing of their services as that of the plaintiff by using trademark „AMBIENCE‟? OPP

(iii) Whether the plaintiff is entitled for injunctions prayed for? OPP

(iv) Whether the plaintiff is entitled for the decree of Rendition of Accounts, if so, for what period? OPP

(v) Whether the plaintiff is entitled for the damages, if so, to what extent? OPP

(vi) Whether no cause of action survives to the plaintiff after withdrawal of the trademark „AMBIENCE‟ prior to the institution of the present suit? OPD

(vii) Relief."

12. The plaintiff filed its evidence by way of affidavit of Mr.Sumit Choudhary, DGM (Sales & Marketing) who proved the registration of the mark Ambience under various classes and the same is exhibited as Exhibit PW-1/3 Colly. PW-1 has also proved legal notices dated 04 th August, 2010 and 12th December, 2012 as Exhibit PW-1/5Colly and Exhibit PW-1/7 Colly, respectively, as well as reply dated 02nd September, 2010 as Exhibit PW-1/6.

13. A coordinate Bench of this Court in Krizm Hotels Private Limited Vs. Vaishnavi Estates (P) Ltd., 190(2012) DLT 631 has held as under:-

"9. xxx xxx xxx The defendant‟s mark "Lemon Tree Apartments" is identical to the registered trade mark of the plaintiff;

the services of the plaintiff and the defendant are similar (the plaintiff is in hotel business whereas the defendant is in the business of construction); it is likely to cause confusion to the public that the defendant‟s "Lemon Tree Apartments" have an association with the plaintiff and, therefore, the plaintiff is entitled to protection under Section 29(2) and (3) of the Trade Marks Act."

14. Keeping in view the aforesaid as well as the plaintiff's evidence by way of an affidavit, the present suit is decreed in accordance with prayers (a), (b) and (e) of the plaint along with the actual costs. However, no specific damages are granted to the plaintiff as no evidence has been led about the quantum and/or extent of damage suffered by the plaintiff.

15. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J SEPTEMBER 19, 2018 KA