Full Judgment Text
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 12 December, 2024
+ CS(COMM) 203/2024 & I.A. 5417/2024, I.A. 36076/2024
WOW MOMO FOODS PRIVATE LIMITED .....Plaintiff
Through: Mr. Ankur Sangal, Mr. Ankit Arvind
and Mr. Shashwat Rakshit, Advocates
Mob: 8874643389
versus
WOW CHINESE .....Defendant
Through: None.
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
MINI PUSHKARNA, J (ORAL)
1. The present suit has been filed for permanent injunction restraining
the infringement of trademark, passing off, unfair trade practice, rendition of
accounts, damages, etc.
2. The said suit has been filed against the defendant to restrain it from
using the trade mark “WOW! CHINESE” or any other trade mark which is
identical/deceptively similar to the plaintiff‟s trade mark “WOW!
CHINESE”, “WOW!”, or any other “WOW!” formative marks.
3. Case as canvassed on behalf of the plaintiff, is as follows:
3.1 Plaintiff, through its predecessors, coined and adopted the trade mark
"WOW!"/ "WOW! MOMO" in the year 2008 in Kolkata. The plaintiff is
engaged in the business of food services, dine-in, delivery, take away
restaurants, etc. and currently has net worth of approximately INR 2500
Signature Not Verified
CS(COMM) 203/2024 Page 1 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
Crores. The plaintiff is also the registered proprietor of „WOW! MOMO‟/
and other „WOW!‟ formative trademarks since the year
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2010 with the use claim of 16 June, 2008.
3.2 The plaintiff while expanding its business under the “WOW!” series
of trademarks adopted the trademark "WOW! CHINESE"/
in the year 2018 and is also the registered proprietor of trademark “WOW!
CHINESE”/
for food and restaurant services. The details
of the various registrations in favour of the plaintiff, as given in the plaint,
are as follows:
Signature Not Verified
CS(COMM) 203/2024 Page 2 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
Signature Not Verified
CS(COMM) 203/2024 Page 3 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
3.3 The plaintiff has goodwill and reputation for its “WOW!” formative
trademarks and achieved sales of over 407 Crores for the period 2022-23
and has spent around 11 Crores on brand promotion.
3.4 The rights of the plaintiff in the “WOW!” formative marks are also
recognised by this Court by way of several orders.
3.5 The defendant has dishonestly adopted the trademark “WOW!
CHINESE”, which is identical to the plaintiff‟s registered trademark
.
Signature Not Verified
CS(COMM) 203/2024 Page 4 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
3.6 The plaintiff became aware of the defendant‟s outlets under the
impugned trademark “WOW! CHINESE”, in December, 2023.
3.7 Thereafter, the plaintiff sent a cease and desist letter to the defendant
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on 12 December, 2023. Since the defendant did not respond to the said
cease and desist letter of the plaintiff, the plaintiff sent a follow up letter
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dated 22 January, 2024 to the defendant.
3.8 Accordingly, the present suit has been filed.
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4. When the matter was listed before this Court on 7 March, 2024, this
Court passed an ex-parte ad interim injunction against the defendant in the
following manner:
“xxx xxx xxx
11. Accordingly, till the next date of hearing, an ex parte ad interim
injunction is passed against defendant and accordingly, the defendant
and all others acting for and on their behalf are restrained from
using, advertising, directly or indirectly dealing in any goods or
services under defendant’s trademark “WOW! CHINESE”/
/ “WOW” or any other trade mark which is
identical/deceptively similar to plaintiff’s registered trademark
“WOW! CHINESE”/
/ “WOW! CHINA”
“WOW!”.
xxx xxx xxx”
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5. In the order dated 13 May, 2024, it is recorded that defendant has
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refused the summons and thus, deemed to be served. The order dated 13
May, 2024, reads as under:
Signature Not Verified
CS(COMM) 203/2024 Page 5 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
“The office noting shows that the defendant has refused the
summons sent by speed post and thus deemed to be served. It is yet to
file the written statement. That be filed as per law, whereafter the
replication be also filed in accordance with law.
Once their pleadings are completed, the parties shall then file
the photocopies of their admitted-documents, if not already filed and
the joint schedule of the documents.
List the matter for admission-denial and marking of exhibits on
08.07.2024.
IA No. 5417/2024 (u/o 39 Rules 1 & 2 r/w Section 151 CPC)
The defendant is yet to file the reply.”
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6. Subsequently, the order dated 8 July, 2024, also recorded that the
defendant had refused the summons by speed post on two different
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addresses on 22 April, 2024 and 23 April, 2024. The order dated 8 July,
2024, reads as under:
“xxx xxx xxx
The defendant had earlier refused the summons via speed-post
on 22.04.2024 & 23.04.2024 at its two different addresses. The 120
days period to file the written statement is however yet to lapse. The
written statement shall be filed as per law, whereafter the replication
shall be filed in accordance with law.
xxx xxx xxx”
7. Despite service, none has appeared for the defendant. Further, no
written statement has been filed by the defendant within the statutory period.
8. Noting the aforesaid, the defendant was proceeded ex-parte vide order
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dated 9 December, 2024, in the following manner:
“xxx xxx xxx
1. Perusal of the order sheets show that the defendant was served on
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22 April, 2024 and 23 April, 2024. However, despite service, there
has been no appearance on behalf of the defendant. Further, written
statement has not been filed by the defendant, despite lapse of
statutory period.
Signature Not Verified
CS(COMM) 203/2024 Page 6 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
2. Accordingly, the defendant is proceeded ex-parte.
xxx xxx xxx”
9. Considering the documents and pleadings on record, it is manifest that
the marks of the plaintiff and defendant are identical/deceptively similar.
10. The defendant has not filed any written statement, thus, there is no
plausible defence raised on behalf of the defendant for adopting the
impugned mark.
11. It is thus clear that the defendant has adopted the impugned trademark
with the intention to unlawfully profit from and create unauthorised
association with the plaintiff.
12. It is also to be noted that the goods and services of the parties relate to
the food industry. Therefore, degree of care and caution is expected to be
observed. Further, the adoption and use of the impugned trademark by the
defendant would also lead to passing off.
13. A Coordinate Bench of this Court, while elucidating upon the scope
of Order VIII Rule 10 of Code of Civil Procedure (“CPC”), 1908 in the case
of Christian Broadcasting Network, INC Versus CBN News Private
Limited, 2018 SCC OnLine Del 11666 , has held as follows:
“xxx xxx xxx
13. The scope of Order 8 Rule 10 CPC in commercial suits
particularly under the New Commercial Courts, Commercial Division
and Commercial Appellate Division of the High Court Act, 2015 has
being examined by this court in Nirog Pharma Pvt. Ltd. v. Umesh
Gupta, (2016) 235 DLT 354. This court held as follows:
“11. Order VIII Rule 10 has been inserted by the
legislature to expedite the process of justice. The courts
can invoke its provisions to curb dilatory tactic, often
resorted to by defendants, by not filing the written
statement by pronouncing judgment against it. At the
same time, the courts must be cautious and judge the
contents of the plaint and documents on record as being
Signature Not Verified
CS(COMM) 203/2024 Page 7 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
of an unimpeachable character, not requiring any
evidence to be led to prove its contents.
……….
28. The present suit is also a commercial suit within the
definition of the Commercial Courts, Commercial
Division and Commercial Appellate Division of High
Courts Act, 2015 and it was the clear intention of the
legislature that such cases should be decided
expeditiously and should not be allowed to linger on.
Accordingly, if the defendant fails to pursue his case or
does so in a lackadaisical manner by not filing his
written statement, the courts should invoke the
provisions of Order VIII Rule 10 to decree such cases. ”
xxx xxx xxx”
(Emphasis Supplied)
14. Considering the aforesaid, the plaintiff is entitled to decree in its
favour. The plaintiff is also held entitled to costs. Merely because a
defendant has not appeared and has not filed any written statement, would
not deny a plaintiff of costs, in the absence of any evidence before the Court.
The averments made in the plaint have not been disputed by the defendant.
Thus, the case as set up by the plaintiff, is deemed to have been admitted.
15. The comparison of the infringing mark of the defendant with the mark
of the plaintiff, clearly brings forth the deceptive similarity between the two
marks. There cannot be any plausible explanation or justification by the
defendant to have adopted a similar/identical mark, as that of the plaintiff.
The conduct of the defendant also points to the guilt of the defendant. The
defendant has chosen not to appear or file any written statement, as clearly,
the defendant has no explanation for adopting an identical mark as that of
the plaintiff. Thus, this Court is of the view that interest of justice shall be
met, if the plaintiff is granted nominal cost of ₹ 2 Lacs.
16. In view of the submissions made before this Court, in exercise of the
power under Order VIII Rule 10 CPC read with Rule 27 of the Intellectual
Signature Not Verified
CS(COMM) 203/2024 Page 8 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31
Property Division Rules, 2022, it is directed as follows:
i. The suit is decreed in favour of the plaintiff and against the defendant
in terms of prayers (a), (b) and (c) of the plaint.
ii. Cost of ₹ 2,00,000/- (Rupees Two Lac), shall be payable by the
defendant to the plaintiff, within a period of six weeks, from today.
iii. Decree sheet be drawn up.
17. The present suit, along with the pending applications, stands disposed
of.
MINI PUSHKARNA, J
DECEMBER 12, 2024
ak
Signature Not Verified
CS(COMM) 203/2024 Page 9 of 9
Digitally Signed
By:AMAN UNIYAL
Signing Date:24.12.2024
23:22:31