The word 'AQUA' cannot be monopolized unless there is dishonesty or malafides in adoption.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

I.A. 15742/2022 (under order 39 rule 4 cpc)

2. This is an application filed by Defendant No. 9 under Order XXXIX Rule 4 read with section 151 of the Code of Civil Procedure seeking vacation/modification/variation of the interim order dated 17th May, 2021 and direct Defendant No 2 to unblock Defendant No. 9's website.

3. It is stated by Defendant No. 9 that it is involved in the business of repair of water purifiers and in the course of its business, created a website/domain name, namely, www.aquaeasy.in and adopted the device mark [IMG]. However, pursuant to the Interim Order dated 17th May, 2021, that Defendant No. 9's stated domain name www.aquaeasy.in was blocked.

4. Mr. Rajeev Kumar ld. Counsel appearing for the Defendant No. 9 submits that in view of the interim order, the domain name was blocked by Defendant No. 2 - GoDaddy which ought to be unblocked as there is no injunction qua the mark "AQUAEASY".

5. On the other hand, Mr. Mukund, ld. Counsel for the Plaintiff submits that the Order has been in operation from 17th May, 2021 and in any event, the marks "AQUAGUARD" and "AQUAEASY" are deceptively similar to each other. He further submit that Defendant No. 9 vide I.A. 8283/2021 had filed an earlier application under Order XXXIX Rule 4 of the Code of Civil Procedure which was also withdrawn vide order dated on 15th February, 2020. Ld. Counsel, thus, submits that Defendant No. 9 has already moved on and is willing to use "GETAQUAEASY", at this stage. Hence, the interim order need not be modified. Relevant portion of the application reads as under:

"That the Defendant No. 9 with a view to settle the matter amicably even proposed settlement to the Plaintiff through its Counsel. However, the Plaintiff wants that the Defendant No. 9 should not use the word "AQUA" in any manner whatsoever. It is further stated that the Defendant No. 9 even proposed that instead of "AQUAEASY" the Defendant No. 9 is ready to use "GETAQUAEASY". However, the above proposal was not acceptable to the Plaintiff and they continued to be steadfast on their demand that the Defendant No. 9 should not use the word "AQUA" in any manner whatsoever."

6. The Court has considered the matter. At this stage, Defendant No. 9's business is stated to have adversely impacted due to the blocking of the domain name. The order dated 17th May, 2021 reads as under:

"6. The plaintiff has made out a prima facie case. The defendants No.3 to 13 etc. are restrained by an ex-parte injunction from using/displaying in any manner the corporate name 'Eureka Forbes' and registered trademarks/copyrights of the plaintiff, 'Aquaguard', 'Dr.Aquaguard', 'Forbes', 'AquaSure' and 'Aeroguard' or any other similar mark in any manner whatsoever.

7. Defendants No. 1 and 2, on the request of the plaintiff stating the exact domain name/entity violating the interim order of this court, shall block the said domain name."

7. The question as to whether the "AQUAEASY" and "AQUAGUARD" are similar or not would be considered by the Court. However, at this stage, the Plaintiff is seeking a monopoly on the word AQUA which means water. A monopoly on the word AQUA would in effect block use of a completely generic word by other businesses, which in the opinion of this Court cannot prima facie be monopolised by anyone, unless there is dishonest or malafides in adoption. The Defendant is engaged in the servicing and repair of water purifiers and cannot be stopped from doing its business. Thus, at this stage, the Court is of the opinion that if the Defendant wishes to use the domain name/mark "GETAQUAEASY", there ought to be no impediment in the same.

8. Moreover, the marks "GETAQUAEASY" and "AQUAGUARD" are not deceptively similar to each other.

9. The Defendant is accordingly permitted to register the domain name having the mark "GETAQUAEASY" and use the said mark/name for its repair services. In the meantime, issue no