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TMI Blog2013 (9) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a low cost carrier airline operated by plaintiff no 2. In the year 2000, on account of reorganization of business, the suit trademark was assigned by plaintiff no 2 to plaintiff no 1. Subsequently via Brand License Agreement dated 05.11.2000, plaintiff no 1 licensed the use of the suit trademark to plaintiff no 2. 3. The plaintiffs allege that the defendant no. 1 company having its principal place of business in Mumbai, is trading in the name and style of „EasyJet Aviation Services Limited'. It is engaged in facilitating air charters, air craft management as well as buying and selling of aircrafts as middlemen. The plaintiffs allege that defendant no 1 is malafidely using the aforesaid trademark "EasyJet" in relation to services that are identical to those covered by the classification in which the plaintiffs mark "easyJet" is registered. 4. Summons were issued in the suit vide order dated 24.02.2010. Though initial appearance was put in by the defendants, no written statement was filed and after repeated absence, the defendants were proceeded ex parte vide order dated 16.12.2010. 5. The plaintiff tendered the affidavit by way of evidence of Sh. Sudhir Thakur, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of- (a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or (b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or (c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s using the impugned trademark in relation to the same services as offered by the plaintiffs under the suit trademark. It is submitted that the plaintiff's trademark is registered under Class 39 which includes chartering, buying/selling of aircrafts, which directly cover the activities undertaken by the defendants. Learned counsel submits that by virtue of Section 29(5), the defendants are in infringement of the suit trademark as they have adopted the same as part of their trade name „EasyJet Aviation Services Limited'. Learned counsel submits that the trademark "easyJet" is not only used by the plaintiffs to distinguish their goods and services, but is also used by plaintiff no 2 as part of its company name, being a mark of repute which is well known in India for the goods and services provided in relation to the mark, as well as to the members of the aviation and travel industry. 11. Learned counsel for the plaintiff next submits that since the year 1995, the trademark of the plaintiffs has come to be associated with a significant amount of goodwill all over the world. Learned counsel submits that the defendant no 1, which was incorporated on 31.03.2003, is in the same lin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses in India. It is submitted that the website quotes prices in INR for the convenience of Indians and that during the aforesaid period, over 28000 bookings were made for easyJet flights by persons accessing the website from India. It is submitted that plaintiff no 1 in addition to easyJet.com owns various other domain names with the prefix easy for its other businesses. 15. Learned counsel submits that in addition to the above, the suit trademark had gained tremendous popularity in India on account of being featured in several leading publications such as "The Times of India", "Hindu" and "Hindustan Times". It is submitted that in addition to the aforesaid, several Management Research Centers have studied the plaintiff's business model and operations and have authored reports and case studies on the same. Besides being featured in Indian newspapers, the plaintiff's trademark has also been featured in international leading magazines such as "Time", "Forbes", and "Economist" etc. which are also available for circulation in India. Learned counsel further submits that since 1999, the plaintiffs have been conferred several awards and accolades over the years such as "one of the greate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious to the reputation of the trademark, and 3) Dilution i.e. the source of the goodwill and profits of the plaintiffs stand likely to get diluted on account of the infringement. In support of the aforesaid submission, learned counsel relies on the decision in B.K Engineering v. U.B.H.T. Enterprises, AIR 1985 Del 210 and Ellora Industries v. Banaraasi Das, AIR 1980 Del 254. 19. Learned counsel submits that by dishonestly adopting the mark of the plaintiffs, there is a high likelihood of the members of the public engaging with the defendants under the misapprehension that they are dealing with the plaintiffs. Learned counsel further submits that under Section 27(2) of the Act, an action for passing off can be maintained in a suit for infringement. 20. Learned counsel for plaintiffs next submits that the plaintiff's rights in the easy group of trademarks/service marks have been protected by various international tribunals such as the domain name dispute resolution panel- namely WIPO, which is constituted under the aegis of the United Nations. Learned counsel submits that the aforesaid demonstrates that judicial pronouncements have consistently recognized the plaintiff's rights in " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agents through its website that provides customers the convenience of booking tickets online as far back as 1998. Exhibit PW1/15 is an article dated 08.03.2001 in the magazine "Economist" stating that several airlines, including the plaintiff no 2's airline, sell up to 90% of their tickets online. 24. Exhibit PW 1/29 is a printout from an Indian online travel portal www.cleartrip.com showing the details, routes, destinations, flights and company information of the plaintiff's operations. The website cleartrip.com also provides a link to the plaintiff's website. This evidences the fact that even besides the plaintiff's own website, Indians can book tickets on the plaintiff no 2's airline via Indian online travel portals too. Exhibit PW1/10 is a summary of visits from Indian IP addresses to the plaintiff no 2's website. The same shows that between 2008-2010, 28416 bookings were made by clients accessing the website from India. 25. Furthermore, Exhibit PW1/14 is an article dated 16.11.2000 in the magazine "The Economist" referring to several low cost airlines including plaintiff no 2 and its plan to increase the density of its flights. Exhibit PW 1/19 is a list of top 5 best compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed with the present suit a transcript of conversation between a private investigator Mr. Anil Kumar and the defendant no 2 discussing the services offered by defendant no 2. Since the affidavit of Mr. Anil Kumar same has not been tendered in evidence, this court cannot look into the same. However, that aside, PW1 has tendered in evidence exhibit PW1/46 which is a copy of the business card of the defendant no 2 which reads as Sunil Nair, Director, EasyJet Aviation Services Pvt Ltd. which shows that the trade name adopted by the defendants is identical to the plaintiff's trademark thereby infringing the plaintiffs mark under Section 29(5) of the Act. Furthermore, Exhibit PW1/45 is a printout from the website justdial.com showing the defendants as listed for providing helicopter charter services, aircraft charter services and air ambulance services. 29. The defendants are using the impugned trademark in respect of identical services covered under class 39 in which the plaintiffs enjoy their registration. Therefore, the action of the defendants squarely amounts to infringement under Section 29. Having already established that the plaintiffs enjoy a considerable amount of reputation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )229, it was observed that "Therefore, it is obvious that where the parties are engaged in common or overlapping fields of activity, the competition would take place. If the two contesting parties are involved in the same line or similar line of business, there is grave and immense possibility for confusion and deception and, Therefore, there is probability of sufferance of damage." 34. In the present case too, the plaintiff no 2 and the defendants are operating in the same sphere of activity. The services provided by the plaintiff no 2 and defendants are identical in nature. Therefore, the likelihood of confusion and deception is strong on account of the public at large associating the defendants services to be those offered by the plaintiff no 2. The acts of the defendants in using the impugned trademark coupled with a lack of plausible explanation offered by the defendants for the same, leads to the conclusion that the defendants are in fact passing off their services as those of the plaintiffs in an attempt to cash in on the plaintiff's reputation worldwide as well as in India. 35. Furthermore, the plaintiff has been vigilant about protecting and defending its intellectual pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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