The main legal point established in the judgment is the protection of trademarks under the Trade Marks Act, 1999, and the court's recognition of passing off, misrepresentation, and misappropriation of goodwill in trademark infringement cases.

MANMOHAN, J.

I.A.No.10563/2017

The learned Joint Registrar vide order dated 24th January, 2019 has observed that the defendants stand served through publication.

Since none appears for the defendants, they are proceeded ex parte.

Keeping in view the averments in the application, the same is allowed and the suit is restored to its original number.

CS(OS) No.678/2015

1. The present suit has been filed for permanent injunction restraining passing off as well as for damages.’

2. On 13th March, 2015, this Court granted an ex parte ad interim injunction in favour of the plaintiff and against the defendants. The relevant portion of the said order is reproduced here-in-below:-

“…… A prima-facie case is made out in favour of the plaintiff and against the defendant and in case the ex-parte ad-interim injunction, as prayed for, is not granted, he shall suffer irreparable loss and injury. Balance of convenience is also in favour of the plaintiff. Accordingly, till the next date of hearing, the defendant/its director/principal officers are restrained from carrying out any kind of business in the real estate under the trade name “HOMESEEK REALTY” or any other mark deceptively similar to the plaintiff’s logo “HOMESEEK REALTORS”.

Compliance of Order XXXIX Rule 3 of the CPC be effected within one week.

Order dasti under the signatures of the Court Master.”

3. The defendant no.2 was initially proceeded ex parte vide order ated 20th January, 2016. The defendant nos.1 and 3 were not ppearing even prior to the dismissal of the suit in default. No written statement is on record.

4. Vide order dated 27th October, 2016 the ex-parte ad interim njunction order was confirmed till the disposal of the suit.

5. Since defendants are not available at their last known addresses and have not appeared despite service by way of publication in the newspaper dated 13th November, 2018, which clearly stated: “in default of appearance, the suit and the IAs will be heard and determined”. Consequently, defendants are proceeded ex parte even in the suit.

6. At this stage, learned counsel for the plaintiff states that he confines his prayer to the relief of permanent injunction as prayed for in paragraph 32(i) of the plaint.

7. This Court is of the view that the present suit can be disposed of without any further delay. A Coordinate Bench of this Court in Satya Infrastructure Ltd. and Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 SCC OnLine Del 508 has held as under:-

“I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-inchief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-inchief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction.”

8. The contentions and submissions advanced by the learned counsel for the plaintiff are as under:-

(i) The plaintiff is a proprietorship concern engaged in the business of real estate including original booking of properties, assisting public at large and real estate investors in purchasing, selling, lease in properties in the real estate market.

(ii) The plaintiff established its business operations in the Indian real estate industry in 2006 under the name HOMESEEK REALTORS and since its establishment has grown over the years as an entity which the people at large trust while dealing in the real estate property. The plaintiff and her team are recognized as Developers and Investors in the real estate sector. The plaintiff has contributed in well known projects such as TULIP ORANGE, TULIP WHI