Delhi High Court
D.B Corp Ltd. vs D.P. Agrawal Publications Pvt. ... on 20 February, 2019
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20th February, 2019
+ CS (COMM) 1320/2016
D.B CORP LTD. ..... Plaintiff
Through: Mr. Rahul Malhotra, Advocate.
(M:9899218215)
versus
D.P. AGRAWAL PUBLICATIONS
PVT. LTD. & OTHERS ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
I.As. 20753/2014 & I.A. 11547/2014
1. None appears for the Defendants. I.As. are dismissed.
CS (COMM) 1320/2016, I.As. 11235/2014 & 17175/2014
2. The present suit has been filed by D.B Corp Ltd. (hereinafter the
„Plaintiff‟) seeking permanent injunction and damages. The case of the
Plaintiff is that it is one of India's largest print media companies and is
engaged in the publication of 8 newspapers, which have 67 editions and 199
sub-editions in 4 different languages i.e. Hindi, Gujarati, Marathi and
English. Newspapers of the Plaintiff are distributed in 14 states in India.
The Plaintiff company is also involved in the running of FM Radio and
internet services. The name 'Dainik Bhaskar' was adopted in the year 1958
and since then, the words 'Dainik Bhaskar' have been used extensively by
the Plaintiff in various derivatives and forms including 'Bhaskar Group‟ and
'Dainik Bhaskar Group‟. It is stated in the plaint that the annual revenue of
the Plaintiff is more than Rs. 1000 crores. The Plaintiff uses the domain
names dainikbhaskar.com and bhaskar.com.
3. The grievance of the Plaintiff is that in May, 2014 it learnt of
Defendant No.1 - M/s. D. P. Aggarwal Publications Pvt. Ltd. running a
website having the address www.bhaskarnewsonline.com. A perusal of the
said website showed that it was a news website promoted by the daughter of
Late Shri Dwarka Prasad Aggarwal. The grievance of the Plaintiff was that
even the logo, which has been used by Defendant No.1 on the website, was
similar to the 'Dainik Bhaskar' logo.
4. Accordingly, the case of the Plaintiff is that since the trademark of the
Plaintiff is registered, the use of bhaskarnewsonline.com resulted in
violation of its statutory and common law rights. The present suit was filed
seeking the following reliefs:
"a) A decree for permanent injunction restraining the
Defendants, their directors, proprietor or partners as
the case may be, their assignees in business, servants
and agents from manufacturing, selling, offering for
sale, advertising, directly or indirectly dealing in
News/Print Media/Electronic Media using the
registered trademark 'BHASKAR' along with its logo
or any other trade mark as may be deceptively
identical or similar to the Plaintiff's trademark;
b) A decree for permanent injunction restraining the
Defendants, proprietor or partners as the case may be,
their assignees in business, distributors, servants and
agents from using the domain name and hosting the
website http://www.bhaskarnewsonline.com or any
other domain name as may be deceptively identical or
similar with domain name 'BHASKAR.COM' of the
Plaintiff Company;
c) A decree damages of Rs. 35 lakhs or any other
amount which may be found due and payable by the
Defendants;
d) An order for costs in the proceedings;"
5. When the suit was listed on 30th May, 2014, a Ld. Single Judge of this
Court passed an ad-interim injunction in the following terms.
"Learned counsel for the plaintiff submits that plaintiff
is a publisher of Hindi newspaper „Dainik Bhaskar.‟
First such publication was made in the year 1958.
Plaintiff‟s newspaper „Dainik Bhaskar‟ has acquired
large circulation over the years.‟Dainik Bhaskar is
recognised and associated with plaintiff‟s newspaper.
Plaintiff‟s mark „Dainik Bhaskar‟ is registered with
logo of „Sun.‟ It is further submitted that plaintiff‟s
newspaper is available online under the domain names
dainikbhaskar.com, divyabhaskar.com and
dailybhaskar.com.
It is contended that „bhaskar.com‟ is one of the
domain names of plaintiff. Learned counsel for the
plaintiff submits that in order to encash plaintiff‟s
reputation and goodwill, defendants have started
online news under the mark „bhaskarnewsonline.com‟
inasmuch as, have partially adopted logo of „rising
sun‟, which is deceptively similar to that of plaintiff.
Defendants are also representing themselves as
member of „Dainik Bhaskar Group‟.
I have heard the learned counsel and perused the
plaint along with documents annexed therewith and am
of the view that plaintiff has succeeded in disclosing a,
prima facie, case in its favour. In case defendants are
not restrained from using the mark „bhaskar‟ plaintiff
shall suffer irreparable loss and injury, inasmuch as,
balance of convenience is also in favour of the plaintiff.
Accordingly, till further orders, defendants are
restrained from using registered trade mark of plaintiff
'bhaskar' along with its logo or any other deceptively
trade mark and/or logo as that of plaintiff. Defendants
are also restrained from using domain name
'www.bhaskarnewsonline.com' or any other deceptively
similar domain name as that of plaintiff."
6. The said order was appealed against by the Defendants and vide order
dated 8th July, 2014, the appeal was dismissed, permitting the Defendants to
pursue the application under Order XXXIX Rule 4 CPC. On 23rd April,
2015, Ld. counsel for Defendant Nos.1 & 2 made a statement before this
Court that the concerned channel had been closed, though there was delay in
closing the same and apology was also tendered to the Court in view of the
application under Order XXXIX Rule 2A CPC.
7. Thereafter, on 13th April, 2018, it was recorded that Defendant No.3
i.e. Mr. Rahul Mittal was no longer a director in Defendant No.1 company.
Admission/denial of the documents was conducted on 20th November, 2017
and 13th April, 2018. However, since the last two hearings i.e. on 19th
September, 2018 and 6th December, 2018, none has been appearing for the
Defendants. An affidavit of apology was also filed on behalf of Defendants
on 17th April, 2015. The written statement filed by the Defendants claims
that Plaintiff's marks are invalid. In the written statement, the defence is
that Defendant No.1 company, was also promoted by Late Shri Dwarka
Prasad Aggarwal, the father of the promoter of the Plaintiff. Though the
written statement has been placed on record, and the application under Order
XXXIX Rule 4 CPC has been filed, none has appeared to raise the defences.
8. A perusal of the logo and mark used by Defendant No.1, clearly,
shows that the logo is an imitation of the 'Dainik Bhaskar' logo. The
Plaintiff is the registered proprietor of the mark 'Dainik Bhaskar' and logo
thereof in various forms and derivatives. The competing logos are set out
below:
Plaintiff's Logos
Defendant's Logo
The use of the Dainik Bhaskar mark, name or logo either as a trade mark,
trading style or domain name constitutes infringement of trade mark and
passing off of the Defendant's business as that of the Plaintiff or that which
is associated, affiliated or connected to the Plaintiff. Such use is
impermissible.
9. Since none has appeared for the Defendants and the rights of Plaintiff
having already been recognised in various other proceedings including in
D.B. Corp Ltd. v Dainik Divya Bhaskar and Anr. CS (COMM) 1061/2018
(Decided on 21st December, 2018) and since the Defendants have also shut
down the domain name bhaskarnewsonline.com, a decree is passed in terms
of the prayer for permanent injunction i.e. prayer (a). The Defendants are
also injuncted from using the mark Bhaskar or any other logo, which is
identical or an imitation of the Plaintiff's logo in terms of prayer (b). In the
facts and circumstances of the present case, the relief of damages is not
made out, inasmuch as Defendant No.2 is a part of the family of the
promoter of the Plaintiff company. Decree sheet be drawn up in terms of
prayers (a) & (b) of the suit.
10. The suit is decreed and all pending applications also stand disposed
of.
PRATHIBA M. SINGH
JUDGE
FEBRUARY 20, 2019/dk
