Trademark infringement established due to similarity of marks; ex parte injunction granted to prevent irreparable harm to the plaintiff.

ORDER

(Video-Conferencing)

CS(COMM) 305/2021

1. Issue summons.

2. Written statement, accompanied by an affidavit of admission and denial of the documents filed by the plaintiff, be filed within a period of four weeks with advance copy to learned Counsel for the plaintiff, who may file replication thereto, if any, within a period of two weeks thereof accompanied by an affidavit of admission and denial of the documents of the defendants.

3. List on 3rd September, 2021 before the Joint Registrar for completion of pleadings, admission and denial of the documents and marking of exhibits.

IA 7714/2021 (extension of time for filing court fee)

4. Mr. Kapil Midha, learned Counsel for the plaintiff, submits that he would file court fee within a period of two weeks from today. Subject thereto exemption is granted for the present.

5. The application stands disposed of.

IA 7712/2021 (exemption) and IA 7713/2021 (exemption from attested affidavit)

6. Allowed, subject to all just exceptions.

7. The applications stand disposed of.

IA 7711/2021 (Order XXVI Rule 9 r/w Order XXXIX Rule 7 CPC for appointment of LC)

8. Issue notice.

9. Reply to this application, if any, be filed within a period of four weeks from today with advance copy to learned Counsel for the plaintiff, who may file rejoinder thereto, if any, before the next date of hearing.

10. List before the Court on 15th September, 2021.

IA 7710/2021 (Order XXXIX 39 Rules 1 & 2 CPC)

11. The plaintiff, through Mr. Chander Lall, learned Senior Counsel instructed by Mr. Kapil Midha, learned Counsel for the plaintiff, seeks ex parte ad interim relief.

12. The facts in this case appear, on the basis of the averments in the plaint, to be fairly straightforward.

13. The plaintiff is the holder of a registered trademark "FLY HIGH". It is asserted that this mark was coined and created by the plaintiff in 2004. It stands registered in favour of the plaintiff under Class 41 by the Registrar of Trademark and user thereof is claimed by the plaintiff from 1st January, 2007. The plaint asserts that this registration is valid and subsisting as on date. It is also asserted that the mark "FLY HIGH" forms an essential part of each page of the plaintiff's website www.frankfinn.com, and also forms part of the following registered domain names of the plaintiff:

(i) www.flyhigh.in;

(ii) app.flyhigh.in;

(iii) fivt.flyhigh.in;

(iv) fima@flyhigh.in.

14. As such, the plaint asserts that, by dint of long and continuous use, the mark "FLY HIGH" is exclusively identified with the plaintiff and deserves to be treated as a "well known trade mark" within the meaning of the expression as defined in Section 2 (1)(zg) of the Trademarks Act.

15. The plaints also contains detailed assertions regarding the reputation, both at a national and international level, which the plaintiff holds, in the arena of hospitality, aviation, travel management and customer services, to which, for the purposes of this order, it is not necessary to allude in detail. The plaint also provides figures of the revenue earned by the plaintiff over the past three years as well as the promotional expenses which have been incurred by the plaintiff, in connection with the mark in question.

16. Reliance has also been placed, in the plaint, on an order dated 10th April, 2019 of this Court in CS(COMM) 866/2018¹ , whereby an interim injunction was granted, protecting "FLY HIGH" mark of the plaintiff. The plaint also refers to an order dated 29th July, 2019 passed by this Court in CS(COMM) 287/2019, Frankfinn Auiation Services (Put.) Ltd. v. Go Airlines (India) Ltd., which was compromised between the parties on the defendant, in that