Make My Trip (India) Private Limited has filed this suit to seek permanent injunction restraining Make My Travel (India) Private Limited from adopting and using the trade name ‘Make My Travel (word per se), MMT (letter mark) and the tag line ‘Dreams Unlimited’, logo which includes infringing word marks and their domain name (hereinafter collectively called ‘Impugned Marks’) as it is violative of the plaintiff’s rights in its own trade marks.
Plaintiff submitted that it incorporated in 2000 and started its business initially with airline ticket bookings and now it has started providing services across India and several other countries around the globe. Initially Plaintiff incorporated with trade name ‘Travel by Web Private Limited’ and later changed to ‘Makemytrip.com Pvt. Ltd’. Subsequently on 28 June 2002, current and present name, MakeMyTrip (India) Pvt. Ltd, was adopted. It was contended that since 2nd August 2000 plaintiff is using MakeMyTrip and MMT continuously and uninterruptedly. Further, it was mentioned that in December 2017 plaintiff came across defendant and its infringing marks where similar services were offered. Being aggrieved by such adoption and usage, plaintiff issued a cease and desist notice to defendant to stop using these marks.
Defendant pleaded that this issue is barred by Section 33 of the Trade Marks Act, 1999 as plaintiff was aware of their existence and business since 2010-2011. Also, it was contended that since plaintiff knew their existence and did not object to the same. Plaintiff also acquiesced to the use of trade mark, trade name and logo for a continuous period of five (5) years and hence it cannot object to the use thereof.
Court on the issue of whether interim injunction dated 17th May 2018 to be confirmed or vacated observed “At the preliminary stage of the suit, while deciding the application of the Plaintiff under Order 39 Rule 1 & 2 as also the application of the Defendant under Order 39 Rule 4, the court has to keep in mind the well settled principles governing the grant of injunction viz. prima facie case; balance of convenience and the harm or injury likely to be caused on account of the impugned acts of the Defendant.”
Further, court also observed that on comparison of defendant’s mark are phonetically, visually, structurally and conceptually are deceptively similar to plaintiff’s marks. Moreover, since both parties are in common business it is bound to confuse the parties.
Court referred to cases to F. Hoffman La Roche v Geofferey Manners (1969) 2 SCC 716, wherein it was held by the Apex Court that, “ the true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. Further, the Court held that marks have to be compared from the point of view of a person of imperfect recollection and meticulous comparison of both the words side by side is not to be made, but the marks are to be compared as a whole looking at the first impression created in the minds of the consumer. The Court has to lay stress on the common features rather than on the differences in essential features.”
Thereafter, HC further mentioned Cadilla Healthcare Ltd. V Cadilla Pharmaceuticals Ltd 2001 PTC 541 (SC) wherein SC referred to Amritdhara Pharmacy v. Satyadev Gupta AIR 1963 SC 449, wherein the Court held that,
“for deceptive resemblance, two important questions that need to be kept in mind are i) who are the persons that the resemblance must be likely to deceive or confuse and ii) what rules of comparison are to be adopted in judging whether such resemblance exists. It was further held that confusion is perhaps an appropriate description of the state of mind of a consumer who on seeing a mark thinks that it differs from the mark on goods which he has previously bought, but is doubtful whether the impression is not due to imperfect recollection”.
Accordingly, the Court held that in the absence of any justification or defense for the use of these marks adoption of these marks appear to be dishonest. Moreover, defendant’s argument cannot be accepted that the plaintiff has acquiesced the use of the infringing marks. Since, continuous usage of these marks by defendant will lead to irreparable loss to the plaintiff Court allowed the injunction order dated 17th May 2018 to be made absolute.