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2014 Supreme(Del) 371
High Court of Delhi
THE HONOURABLE MR. JUSTICE MANMOHAN SINGH
Brahmos Aerospace Pvt. Ltd.
Versus
Fiit Jee Limited & Another
I.A. No. 21136 of 2013 in CS(OS) No.2655/2013
For the Plaintiff:Mohit Chaudhary, A. Das, Rashi Bansal, Anju Agrawal, Advocates.
For the Defendants:Pratibha M.Singh, Sr. Adv. with Arjun Mukherjee, Abhinav Verma, Advocates.
A well-known trademark is protected even in relation to dissimilar goods or services.
Headnote:
BRAHMOS - TRADEMARK - INFRINGEMENT - PASSING OFF - WELL-KNOWN TRADEMARK - INTERIM INJUNCTION - The Delhi High Court granted an interim injunction restraining the defendants from using the trademark BRAHMOS in relation to educational activities or part of the domain name and in any manner whatsoever in order to create confusion and deception and infringing the trademark of the plaintiff. The Court held that the trademark BRAHMOS is a well-known trademark and the defendants' use of the mark is likely to cause confusion and deception among the public.
Fact of the Case:
The plaintiff, Brahmos Aerospace Pvt. Ltd., filed a suit for permanent injunction restraining infringement of the trademark, passing off, unfair competition, rendition of accounts, damages, etc. against the two defendants, namely, FIIT JEE Limited, New Delhi and USA Univ. Quest, New Delhi. The plaintiff alleged that the defendants are using the identical trademark BRAHMOS for identical services being educational services by conducting an online aptitude test. The defendants contended that the trademark BRAHMOS is not a distinctive trademark and that they are using the mark BRAHMOS in order to indicate a connection in the course of trade.
Finding of the Court:
The Court held that the trademark BRAHMOS is a well-known trademark and that the defendants' use of the mark is likely to cause confusion and deception among the public. The Court also held that the defendants' use of the mark BRAHMOS is an infringement of the plaintiff's trademark and that the defendants are passing off their services as those of the plaintiff.
Issues: Whether the trademark BRAHMOS is a well-known trademark.
Ratio Decidendi: The Court held that the trademark BRAHMOS is a well-known trademark based on the following factors: * The mark is registered in favor of the plaintiff in relation to all the merchandise goods of classification including the goods and services, providing the training, entertainment, sporting and cultural activities in Class 41 and in respect of stationery goods including paper, cardboard, printed matters, bookbinding material and large number of other goods included in Class 16. * The mark has been widely advertised in modern media. * It has acquired a great goodwill and reputation in India and abroad in respect of supersonic missile in aerospace industry, coupled with the fact that the said trademark BRAHMOS is also a dominant part of the corporate name of the plaintiff and the educational programmes pertaining to aerospace industry being provided by the plaintiff.
Final Decision: The Court granted an interim injunction restraining the defendants from using the trademark BRAHMOS in relation to educational activities or part of the domain name and in any manner whatsoever in order to create confusion and deception and infringing the trademark of the plaintiff.
Manmohan Singh, J.
1. By this order, I propose to decide the pending application being I.A. No.21136/2013 (under Order XXXIX Rules 1 & 2 CPC) filed by the plaintiff seeking interim injunction.
2. The plaintiff, Brahmos Aerospace Pvt. Ltd. has filed the suit for permanent injunction restraining infringement of the trademark, passing off, unfair competition, rendition of accounts, damages, etc. against the two defendants, namely, FIIT JEE Limited, New Delhi and USA Univ. Quest, New Delhi. It is alleged in the plaint that the Government of India is the majority shareholder (50.5%) in the plaintiff-Company held by the Defence Research and Development Organization (DRDO) under the Ministry of Defence (MOD). Dr.APJ Abdul Kalam was one of the first subscribers to the Memorandum of Association in the plaintiff-Company. It is claimed that the trademark “BRAHMOS” is a prestigious well-known and reputed trademark of the plaintiff-Company which is used by the defendants for identical services being educational services by conducting an online aptitude test. It is also alleged that the plaintiff conducts various educational programmes pertaining to the aerospace industry, including training of its employees and engineers. The defendants herein have dishonestly adopted the identical trademark in respect of the same services in order to give an impression to students that their online test is affiliated to the plaintiff. Some of the students belonging to Delhi had ranged up to the plaintiff’s office several times and have also sent e-mails to inquire whether taking the BRAHMOS aptitude test of the defendants entitles them for job(s)/internships in the plaintiff-Company.
3. It is further stated in the plaint that the plaintiff-Company was incorporated on 5th December, 1995 as BRAHMOS Private Limited and thereafter, its name was changed to BRAHMOS Aerospace Private Limited in 2003 and a fresh certificate in this regard was also issued by the Registrar of Companies. The name BRAHMOS is a unique and coined name of the plaintiff-Company formed with the conjugation of parts of names of two great rivers of India and Russia, i.e. “Brahmputra” and “Moskva”. The said trademark BRAHMOS being a coined word, first time was adopted by the plaintiff having no dictionary meaning, thus, by virtue of long user since 1995, it acquires distinctiveness. The said trademark BRAHMOS is also being used in several missiles including a supersonic cruise missile which the world’s fastest cruise missile in operation which travels at a speed of Mach 2.8 to 3.0. There are many other activities bearing the name BRAHMOS, the details of which are given in paras 8 to 17 of the plaint which are relied upon by the learned counsel for the plaintiff during the course of the arguments.
4. It is alleged by the plaintiff that it has tremendous success and name in the trademark BRAHMOS which has become successfully synonymous with the plaintiff in view of the great achievement, innovation and success in the international arena of missiles and aerospace.
BRAHMOS in Education
5. It is averred in the plaint that the plaintiff also plays a significant role in the arena of scientific research, training and knowledge dissemination all of which constitute education. It is also active in the business of providing technical and managerial know how, consultancy services and personal training. The plaintiff also conducts various educational programmes pertaining to the aerospace industry in the form of speeches, discussions, seminars etc. which are attended by not only people from the aerospace industry, but also by aspiring engineers and professionals. Majority of such lectures as aforesaid is delivered by Dr.S.A.Pillai (MD and CEO) of the plaintiff-Company who is the most distinguished scientist in the aerospace industry and an authority in aerospace engineering and knowledge. Some material in this regard has also been filed by the plaintiff along with the list of documents.
6. Statement i
