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TMI Blog2014 (1) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... by the plaintiff as a consumer is likely to be deceived into believing that the goods offered by the defendant actually belong to the plaintiff. Though the plaintiff needn’t prove actual damages suffered by him, it is imperative that the Court while awarding damages considers the averments made in the plaint coupled with an assessment of the extent of damage likely caused or to be caused. The plaintiff avers that it found out about the proposed launch of the defendant’s restaurant in May 2008. This Court vide order dated 19.12.2008 granted an exparte injunction in favour of the plaintiff and restrained the defendant from using the mark “THE NOODLE HOUSE”. Keeping in view the short duration between the filing of the suit and grant of injunction, in addition to the fact that the plaintiff has not placed anything on record to establish whether the defendant’s restaurant was launched at all, this Court is not inclined to award damages - Decided in favour of Appellant. - CS(OS) 1069/2008 - - - Dated:- 10-1-2014 - MR. VIPIN SANGHI, J. For the Appellant : Mr. H.P. Singh Mr. Navroop Singh, Advocates. JUDGMENT VIPIN SANGHI, J. 1. The Plaintiff, Oriental Cuisines Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne as the plaintiff s restaurant. In the aforesaid background, the plaintiff filed the present suit seeking the reliefs mentioned hereinabove. 5. Summons were issued in the suit vide order dated 30.05.2008 returnable on 11.07.2008. As service report was awaited, fresh summons were issued vide order dated 11.07.2008 returnable on 12.08.2008 on which date summons were again directed to be issued returnable on 12.09.2008. On 12.09.2008, service report was awaited and the matter was renotified for 19.11.2008. On 19.12.2008, the defendant was proceeded ex parte as despite being served with Dasti summons on 22.10.2008, the defendant failed to put in an appearance and file its written statement. Order dated 19.12.2008 also allowed the plaintiff s application under Order 39, Rule 1 2, Civil Procedure Code (CPC) and restrained the defendant from manufacturing, selling, offering for sale, advertising or rendering services in hospitality industry or other related goods and services under the trademark THE NOODLE HOUSE or any mark deceptively similar thereto amounting to infringement and passing off till the disposal of the suit. On 09.11.2009, notice was issued on the plaintiff s applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parate link on its website www.orientalgroup.in dedicated solely to the history of THE NOODLE HOUSE. Learned counsel submits that in order to encash upon the goodwill of the trademark, the plaintiff company has taken on lease a shop in SATYAM CINEPLEX, Nehru Place, Delhi in 2008 to open up a branch of the THE NOODLE HOUSE . 9. Learned counsel submits that the proposed launch of the defendant s restaurant under the identical trademark is in a vicinity close by to the plaintiff s location and for the same category of products and services as those of the plaintiff. Learned counsel submits that the use of the trademark THE NOODLE HOUSE by the defendant for identical services is with the intention to free ride on the plaintiff s popularity. 10. Learned counsel submits that the mark of the defendant is identical to that of the plaintiff s, and is likely to create an impression that the mark of the defendant is an extension of the plaintiff s mark or is the outcome of a joint venture between the plaintiff and defendant. Learned counsel submits that the same is likely to cause confusion and will result in dilution of the plaintiff s mark. 11. Though the registration of the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kely to cause confusion and mislead the public into believing that the services of the defendant are associated with the plaintiff. The same are as follows: Mark of the Plaintiff - Mark of the Defendant- 15. The label mark of the plaintiff consists of the words THE NOODLE HOUSE . As already mentioned hereinabove, the plaintiff uses the aforementioned trademark in respect of restaurants catering to Chinese cuisine. The impugned mark being used by the defendant contains the identical words THE NOODLE HOUSE alongwith 2 chopsticks with a string of noodle wrapped around and a bye line which reads enjoy tasty tangles . A perusal of the defendant s mark makes it clearly discernible that the defendant intends to use to impugned mark in respect of Chinese cuisine which is identical to the cuisine being offered by the plaintiff. The mark as well as goods offered being identical, the same is likely to confuse a consumer with imperfect memory. 16. Ex PW 1/8 is lease deed dated 20.02.2008 entered into by the plaintiff for acquiring on lease a commercial premises in South Delhi for the purpose of running a branch restaurant under the trademark. The defendant s restaurant is also situat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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