FACTUAL MATRIX

Respondent-plaintiff in this writ petition filed the suit O.S.No.8499/2014 against the petitioner – defendant herein for the following reliefs:

(a) “To direct the Defendant or its agents, assignees, nominees or any person acting on their behalf or claiming under them to cease and desist from using the said trade mark “Vistara” belonging to the plaintiff or by any other name/s which are phonetically and visually similar to the word “Vistara”

(b) By way of a Permanent Injunction to restrain the defendant or its agents, assignees, nominees or any person acting on their behalf or claiming under them, from using the said trade mark “Vistara” belonging to the plaintiff or by any other name/s which are phonetically and visually similar to the word “Vistara”

(c) By way of a Mandatory Injunction direct the defendant to delivery up the infringing labels and marks for destruction or erasure;

(d) Direct the defendants to pay the plaintiff a sum of Rupees 1,00,00,000/- (Rupees One Crore only) as damages for passing off of the trade mark “Vistara” belonging to the plaintiff as their own.”

contending interalia that plaintiff – company came into being to revolutionalise India’s corporate travel market and it is registered with the Directorate of Industries and Commerce, Government of Karnataka and is carrying on its business in travel and travel related market since its inception in 2008 and has been operating and conducting its business under the Trade Marks “Vistara Voyages” and “Vistara”. It is further contended that the said trade marks of the plaintiff has been widely advertised and extensively used by the plaintiff company in the travel and travel related market since 2008 and same is advertised through its website www.vistara.in and as such the trade marks had been widely publicized locally in India and internationally for both retail and corporate clients. It is also contended that plaintiff has spent huge amount of time and money over a period of six years for the soaring goodwill of its trade mark “Vistara”.

2. Plaintiff has further contended that the defendant which is a company incorporated under the provisions of Companies Act, 1956 on 05.11.2013 has commenced its business to provide Airport and allied services to domestic and international airlines which company is a joint venture between Tata Sons Ltd., and Singapore Airlines Ltd., and it intends to create a brand name for them by the name “Vistara”, which is identical and deceptively similar to that of the trade mark of the plaintiff. Hence, on the grounds set out in the plaint it has sought for the reliefs noted hereinabove. On the same lines an application under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction also came to be filed.

3. On service of suit summons defendant appeared filed its written statement and also objections to the plaintiff’s application for temporary injunction. Simultaneously defendant also filed an application under Order VII Rule 10 and 11 of CPC, 1908 seeking rejection of the plaint or in the alternate to return the plaint for being presented before jurisdictional Court contending interalia that there is no cause of action for the suit and same is liable to be dismissed for lack of jurisdiction and defendant is not carrying on any business in India and also the meetings between the parties does not confer jurisdiction, by giving rise to a cause of action for filing the suit. It was also contended that benefit of Section 134 of the Trade Marks Act, 1999 would not extend to a person whose trade mark application is pending before the Registrar. This amongst other grounds defendant sought for rejection of the plaint.

FINDING RECORDED BY TRIAL COURT:

4. Trial Court after hearing the arguments advanced on behalf of the parties dismissed I.A.No.2 filed by the defendant on the ground that reading of the plaint averments together with the certificate issued by the Joint Director, District Industrial Centre, Bengaluru Urban District w