CS(COMM) 88/2020

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$~25 (original)

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CS(COMM) 88/2020

ELEMENTIA WELLNESS PRIVATE LIMITED ..... Plaintiff

Through:

Ms. Nancy Roy and Ms.

Sharanya J, Advs.

versus

TES BEAUTY SERVICES PRIVATE LIMITED & ANR.

..... Defendants

Through:

None

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

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 25

J U D G M E N T (O R A L)

%

15.12.2021

th

February, 2020.

2.

The only date on which appearance was forthcoming, for any of

the defendants, was on 17^th

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.

2021:DHC:4208

CS(COMM) 88/2020

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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.

2021:DHC:4208

CS(COMM) 88/2020

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7.

The aforesaid registrations had originally been granted to Mr.

Karan Goyal, and were assigned to the plaintiff vide Assignment

Agreement dated 15^th

8.

The plaint also provides figures of the steady increase in

earnings from the services provided by the plaintiff which, from a

figure of ₹ 37,66,868/- in 2012, have increased to ₹ 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:

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.

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

2021:DHC:4208

CS(COMM) 88/2020

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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

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CS(COMM) 88/2020

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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