Homeeek Realtors vs Mr Deepak Kainth & Ors
2019 Latest Caselaw 525 Del

$~24
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+        CS(OS) 678/2015

         HOMEEEK REALTORS                               ..... Plaintiff
                     Through:             Mr.Vinay Ranjan, Advocate.

                           versus

         MR DEEPAK KAINTH & ORS                         ..... Defendants
                      Through: None

%                                   Date of Decision: 28th January, 2019

         CORAM:
         HON'BLE MR. JUSTICE MANMOHAN

                            JUDGMENT

MANMOHAN, J (Oral) I.A.No.10563/2017 The learned Joint Registrar vide order dated 24th January, 2019 has observed that the defendants stand served through publication.

Since none appears for the defendants, they are proceeded ex parte.

Keeping in view the averments in the application, the same is allowed and the suit is restored to its original number. CS(OS) No.678/2015

1. The present suit has been filed for permanent injunction restraining passing off as well as for damages. `

2. On 13th March, 2015, this Court granted an ex parte ad interim injunction in favour of the plaintiff and against the defendants. The relevant portion of the said order is reproduced hereinbelow:-

"...... A prima-facie case is made out in favour of the plaintiff and against the defendant and in case the ex-parte ad-interim injunction, as prayed for, is not granted, he shall suffer irreparable loss and injury. Balance of convenience is also in favour of the plaintiff. Accordingly, till the next date of hearing, the defendant/its director/principal officers are restrained from carrying out any kind of business in the real estate under the trade name „HOMESEEK REALTY‟ or any other mark deceptively similar to the plaintiff‟s logo „HOMESEEK REALTORS‟.

Compliance of Order XXXIX Rule 3 of the CPC be effected within one week.

Order dasti under the signatures of the Court Master."

3. The defendant no.2 was initially proceeded ex parte vide order dated 20th January, 2016. The defendant nos.1 and 3 were not appearing even prior to the dismissal of the suit in default. No written statement is on record.

4. Vide order dated 27th October, 2016 the ex-parte ad interim injunction order was confirmed till the disposal of the suit.

5. Since defendants are not available at their last known addresses and have not appeared despite service by way of publication in the newspaper dated 13th November, 2018, which clearly stated: "in default of appearance, the suit and the IAs will be heard and determined". Consequently, defendants are proceeded ex parte even in the suit.

6. At this stage, learned counsel for the plaintiff states that he confines his prayer to the relief of permanent injunction as prayed for in paragraph 32(i) of the plaint.

7. This Court is 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."

8. The contentions and submissions advanced by the learned counsel for the plaintiff are as under:-

(i) The plaintiff is a proprietorship concern engaged in the business of real estate including original booking of properties, assisting public at large and real estate investors in purchasing, selling, lease in properties in the real estate market.

(ii) The plaintiff established its business operations in the Indian real estate industry in 2006 under the name HOMESEEK REALTORS and since its establishment has

grown over the years as an entity which the people at large trust while dealing in the real estate property. The plaintiff and her team are recognized as Developers and Investors in the real estate sector. The plaintiff has contributed in well known projects such as TULIP ORANGE, TULIP WHITE, TULIP IVORY etc.

(iii) The plaintiff's name HOMESEEK REALTORS was coined and adopted by Mrs. Meenakshi Arora, proprietor of the plaintiff firm, in 2006 and with passage of time, has come to be exclusively associated with the plaintiff and its business. The name HOMESEEK REALTORS is an invented name having no dictionary meaning and thus has the highest degree of distinctiveness and protection.

(iv) On 12th June, 2014, Mrs. Meenakshi Arora applied for registration of the mark HOMESEEK REALTORS vide application on. 2754606 under Class 36 of the Trade Marks Act, 1999 and the same is pending.

(v) In financial year 2013-2014, the plaintiff incurred expenses of Rs. 24,53,055/- towards promotion and advertisement.

(vi) In January, 2013, the defendant no. 1 approached the plaintiff to work as a Freelance Business Associate for the plaintiff's property marketing business. The defendant no. 1 was appointed and employed by the plaintiff on a fixed sum per sale basis.

(vii) The defendant no. 1 was associated with the plaintiff till March, 2014 when he decided to leave the association. All

his dues were settled by way of a full and final payment vide cheque no. 506296 dated 31st March, 2014 for an amount of Rs. 1,80,000/-.

(viii) In July, 2014, the defendant no. 1 met the plaintiff at a social event and informed her that he had started a new venture under the name of 121 Investors. Thereafter in November, 2014 the plaintiff noticed that the defendant no. 1 had opened his office in the same building where the plaintiff already had her office, under the name 121 Investors.

(ix) On 04th February, 2015, the plaintiff was shocked to notice the signboards at the defendant no. 1's new office under the name HOMESEEK REALTY which was identical/deceptively similar to the plaintiff's name HOMESEEK REALTORS. The defendant no. 2 is the wife of the defendant no. 1 and the defendant no. 3 is the defendants business under the name HOMESEEK REALTY

(x) The defendants in collaboration have not only copied the name of the plaintiff's firm, but also stolen the confidential information pertaining to the plaintiff's client database during the term when the defendant no. 1 was associated with the plaintiff. The defendants are using the said confidential information by directly approaching the plaintiff's clients and projecting themselves as erstwhile partners of the plaintiff firm.

(xi) In February, 2015 the plaintiff was further shocked when it came across the defendant no. 2's application no. 2748272 for registration of the mark HOMESEEK REALTY under Class 36 of the Trade Marks Act, 1999.

9. Learned counsel for the plaintiff states that the name, colour combination and overall appearance of the mark/logo HOMESEEK REALTORS used by the defendant no. 1 is identical/deceptively similar to the plaintiff's mark HOMESEEK REALTY.

10. Learned counsel for the plaintiff states that the defendants are spreading false information in the market that HOMESEEK REALTORS has been bought over by the defendants who are now operating the firm under the name HOMESEEK REALTY.

11. Learned counsel, for the plaintiff states that the defendants have adopted the name HOMESEEK REALTY which is visually and phonetically identical/deceptively similar to the plaintiff's name HOMESEEK REALTORS, in the same vicinity as the plaintiff for the same services with the malafide intent to cause confusion in the market that the defendants are associated with the plaintiff and to ride upon the goodwill of the plaintiff.

12. From the aforesaid it is apparent that the plaintiff is the prior user of the trade mark in question. This Court is also of the opinion that the plaintiff has proved and established a case of passing off of trademark, misrepresentation and misappropriation of goodwill, in its favour.

13. In the opinion of this Court, the defendants have no real prospect of defending the claim as the averments of the plaintiff have gone unrebutted.

14. In view of the above, the suit is decreed in favour of the plaintiff and against defendants in terms of paragraph 32(i) of the prayer clause of the plaint along with actual costs. The costs shall amongst others include lawyers' fees as well as the amounts spent on purchasing the Court fees. The plaintiff is given liberty to file on record the exact cost incurred by him in adjudication of the present suit, if not already filed. Registry is directed to prepare a decree sheet accordingly.

15. Consequently, the present suit stands disposed of.

MANMOHAN, J JANUARY 28, 2019 mn/KA