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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Elementia Wellness Private Limited - Appellant
Versus
Tes Beauty Services Private Limited - Respondent
CS(COMM) 88 of 2020
Decided On : 15-12-2021
Important Points
Subject
Intellectual Property - Trademark Infringement
Act Referred
Headnote
(B) Legal standards for trademark infringement - The identically phonetic and visually similar nature of marks, along with identical services and target consumers, justifies an injunction. (Paras 11, 18)
| Table of Content |
|---|
| 1. non-contested nature of the suit. (Para 1 , 2 , 3) |
| 2. establishment of plaintiff’s prior use and trademark registrations. (Para 4 , 5 , 6 , 8 , 10) |
| 3. recognition of the plaintiff's mark as well-known. (Para 7 , 9 , 11) |
| 4. cease and desist notice and acknowledgment of infringement. (Para 12 , 13 , 14) |
| 5. infringement and passing off analysis. (Para 15 , 16 , 17) |
| 6. court’s decree and direction. (Para 18 , 19 , 20 , 21) |
JUDGMENT (Oral)
1. Summons were issued in the suit and notice was issued in I.A. 2625/2020, under Order XXXIX Rules 1 and 2 of the CPC on 25th February, 2020.
2. The only date on which appearance was forthcoming, for any of the defendants, was on 17th July, 2020, when Defendant 2 was represented. Prior thereto and thereafter, there has been no appearance on behalf of the defendants. Written statement has also not been filed.
3. Clearly, therefore, this suit is not being contested.
4. The plaintiff claims to have established in 2009 and to be providing spa services under the name and style "TATTVA SPA" and to be operating under the domain name www.tattvaspa.com, registered in 2009. The plaint further avers that services of the plaintiff are available in Agra, Aurangabad, Bengaluru, Chennai, Faridabad, Goa, Gurgaon, Guwahati, Haridwar, Hyderabad, Jaipur, Jaisalmer, Jim Corbett, Khajuraho, Kandla, Kodaikanal, Kochi, Lonavala, Mumbai, Mysore, Nainital, Noida, Ooty, Patna, Pune, Raipur, Rishikesh, Udaipur and Yercaud. The defendants are stated to be operating in Goa where, too, therefore, the plaintiff's services are available.
5. The plaintiff holds the following registrations:
| Trade Mark | Registration Number | Registration Date | Class |
 | 1879286 | November 03, 2009 44 | |
| Services: Spa and Salon services | |||
| TATTVA SPA | 2462008 | January 17, 2013 | 44 |
| Services: Spa and Salon services |
6. These registrations are stated to be valid and subsisting as on date. By virtue of Section 31 of the Trademarks Act, they are, therefore, accorded prima facie validity.
7. The aforesaid registrations had originally been granted to Mr. Karan Goyal, and were assigned to the plaintiff vide Assignment Agreement dated 15th July, 2014. The plaintiff asserts that, over a period of time, by dint of continuous and uninterrupted use, it has amassed a formidable reputation within the spa sector and that the aforesaid marks, registered in the plaintiff's favour, are invariably associated with the spa services provided by the plaintiff in the perception of the public.
8. The plaint also provides figures of the steady increase in earnings from the services provided by the plaintiff which, from a figure of Rs.37,66,868/- in 2012, have increased to Rs.10,98,33,570/- in 2019. Figures of the advertising and promotional expenses incurred by the plaintiff are also provided in the plaint in a tabular format thus:
| Year | Net Revenue (in INR) |
| 2012 | 37,66,868 |
| 2013 | 93,43,064 |
| 2014 | 1,06,31,256 |
| 2015 | 1,51,84,536 |
| 2016 | 3,29,17,380 |
| 2017 | 4,88,16,307 |
| 2018 | 7,84,75,413 |
| 2019 | 10,98,33,570 |
9. Learned Counsel for the plaintiff submits that, therefore, the plaintiff's mark is a "well known mark" within the meaning of Section 2 (1)(zg) of the Trademarks Act.
10. The defendant is also providing spa services under the name "TATVA". It operates under the domain name www.tatvaspa.com. A comparison of the marks of the plaintiff and the defendant is provided in the plaint thus:
| Plaintiff's Trade Marks | Defendants' Impugned Marks |
| Word Mark/Trade Name TATTVA SPA | Impugned Word Mark/Trade Name TATVA SPA |
Logo Marks | Impugned Logo Marks |
| Domain Name www.tattvaspa.com | Impugned Domain Name www.tatvaspa.com |
11. There can be no gainsaying the fact that the words "TATTVA" and "TATVA" are, phonetically, not merely similar, but identical. As the defendant is providing services identical to those provided by the plaintiff, there is every possibility of the public being misled regarding the services provided by the defendant as those of the plaintiff or at least to draw an association between them. The marks being phonet
