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Ihhr Hospitality Pvt. Ltd. v/s Bestech India Pvt. Ltd.

    FAO(OS) 352 of 2011
    Decided On, 09 May 2012
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE PRADEEP NANDRAJOG & THE HONOURABLE MR. JUSTICE SIDDHARTH MRIDUL
    For the Appellant: Rajeev Virmani, Senior Advocate instructed by Shantanu Sood, Advocate. For the Respondent: Arun Bharadwaj, Senior Advocate instructed by Manish Sharma, Ms. Shivanshi Gupta, Advocates.


Judgment Text
PradeepNandrajog, J.

Oral:

1. We remind ourselves of the opinion rendered by a Three Judge Bench of the Supreme Court reported as 1990 (Suppl) SCC 727 Wander Ltd. & Anr. v. Anton India Pvt. Ltd. : ‘While deciding intra court appeals against the exercise of discretion by a Single Judge, the Appellate Court would not interfere with the exercise of discretion by the Court of First Instance and substitute its own discretion, except where the discretion has been shown to have been exercised either arbitrarily, or capriciously or perversely or where the Court has ignored settled principles of law regulating grant or refusal of interlocutory injunction. Appeal against exercise of discretion is said to be an appeal on principle.’

2. The appellant, in the business of running ‘Spas’ i.e. leisure hotels has two luxurious Spas; one in Mauritius and the other in India. The appellant is the registered proprietor of the service mark ‘ANANDA’ as also is the registered proprietor of the same word as a trademark pertaining to ayurvedic and herbal preparations, toiletries, bread, biscuits and cakes. The appellant is in business since the year 1998 and as of the year 2009, when the suit seeking injunction against the respondent was filed, claims to have notched sales over 10 years totaling to Rs.200 crores.

3. The grievance pertains to the respondent marketing apartments in a Group Housing Gated Complex under the name:

‘Bestech Park View Ananda’.

4. It is the case of the appellant that activity of constructing and selling apartments relates to a cognate field of establishing leisure hotels and spas and thus it is claimed that the goodwill of the appellant is being traded upon by the respondent.

5. It is the case of the appellant that its service mark and trademark ‘Ananda’ has achieved such distinctiveness and degree of association with the appellant that use of such mark in relation to services or goods and especially housing is bound to indicate, in the mind of the consumer, a connection between the goods or services of the appellant.

6. The learned Single Judge has declined the interim injunction prayed for, noting that the word ‘Ananda’ is not a coined word. The word signifies ‘bliss’. The word ‘Anand’ which means ‘bliss’, has been noted to have its origin in the Sanskrit word ‘Ananda’, which means ‘bliss’, ‘joy’ and ‘happiness’.

7. The learned Single Judge has wrongly noted in paragraph 5 of the impugned decision that the appellant commenced use of the mark ‘Ananda’ since the year 2003; the fact of the matter is that the year has to be ‘1998’. The learned Single Judge has also noted, in paragraph 6, that if not more, at least three other persons, and one of whom is in the trade of running hotels and one in the trade of selling ayurvedic products are using the word ‘Ananda’ as a part of their trademark. The learned Single Judge has opined that considering the origin of the word ‘Ananda’, a word in public doman, there was insufficient evidence at the stage of grant of an injunction to conclude that the word ‘Ananda’ had acquired such distinctive association with the appellant that respondent’s use of the said word as a part of its brochure while selling the apartments would be likely to cause deception.

8. With respect to use of common words and especially which relate to the culture of a country, a Division Bench of this Court, in the decision reported as 186 (2012) DLT 234 (DB) Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities Pvt. Ltd. , had opined that law would ordinarily lean against common words having cultural roots in the society being monopolized to the exclusion of others. The word in dispute in said case was ‘Krishna’, a God linked with milk and butter, for his love for milk and butter, in India. The products concerned were dairy products.

9. The appellant has chosen to obtain registration of a word, as its trademark, which is not only public juris but is a word which is closely associated by the large mass of people in India as indicative of, in relation to an abode: a place of peace where the mind, the body and the soul can relax and rejuvenate.

10. Being the registered proprietor of the trademark ‘Ananda’, the appellant would have to show, prima facie evidence that so strong in the public mind is the mark linked, with reference to it having achieved secondary distinctiveness, that upon seeing mark ‘Ananda’ in relation to an abode, it immediately brings to mind the appellant. This would require prima facie evidence wherefrom a view could be taken that the word ‘Ananda’ reminds the consumer, without any further prompting, that the product is that of the appellant.

11. Now, sales of Rs.200 crores spread over 10 years would prima facie be insufficient evidence to establish that the word ‘Ananda’, in relation to an abode, has acquired such secondary meaning that an ordinary consumer, without thinking any more, would automatically conclude every abode with the appellant.

12. We need not therefore discuss the ratio of law on which injunctions have been granted or refused with reference to large number of decisions cited at the Bar for the reason each case unfolds its own crux. But, to be fair to the appellant we note that the counsel for the appellant has relied upon the under noted decisions:-

(i) T.V.Venugopal v. Ushodaya Enterprises Ltd. & Anr. 2011 (4) SCC 85.

(ii) Godfrey Philips India Ltd. v. Girnar Food & Beverages (P) Ltd. 2005 (30) PTC 1 (SC).

(iii) Laxmikant V.Patel v. Chetanbhai Shah & Anr. 2002 (24) PTC 1 (SC).

(iv) Parle Products (P) Ltd. v. J.P. & Co., Mysore AIR 1972 SC 1359.

(v) Corn Products Refining Co. v. Shangrila Food Products Ltd. PTC (Suppl) (1) (13) (SC).

(vi) Ford Motor Company v. C.R.Borman 2009 (39) PTC 76 (Del.) (DB).

(vii) Pankaj Goel v. Dabur India Ltd. 2008 (38) PTC 49 (DB) (DEL).

(viii) Madhuban Holiday Inn v. Holiday Inn Inc. 2002 (25) PTC 308 (DEL) (DB).

(ix) Metropol India (P) Ltd. v. Praveen Industries India (Regd.) 1997 PTC (17) (DB).

(x) Century Traders v. Roshan Lal Duggar & Co. PTC (Suppl) (1) 720 (Del) (DB).

(xi) Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. 2011 (48) PTC 363 (Del).

(xii) Ozone Spa Pvt. Ltd. v. Ozone Club 2010 (42) PTC 469 (Del).

(xiii) Ford Motor Compa

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ny of Canada v. Ford Service Center 2009 (39) PTC 149. (xiv) Mrs.Ishi Khosla v. Anil Aggarwal & Anr. 2007 (34) PTC 370 (Del). (xv) Info Edge (India) Pvt. Ltd. & Anr. v. Shailesh Gupta & Anr. 2002 (24) PTC 355 (Del). 13. We simply highlight the fact that the word ‘Ananda’ is a word which is public juris. In relation to abodes, it signifies joy, bliss and happiness. The sales of the appellant in sum of Rs.200 crores spread over 10 years have rightly been opined by the learned Single Judge to not be indicative of a distinctiveness of the word being linked to the appellant. 14. Our views are tentative, limited to interim injunction. 15. The appeal is dismissed. 16. No costs.
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