1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1737 OF 2008 IN SUIT NO. 1480 OF 2008 Bharatiya Vidya Bhavan & Ors. .... Plaintiffs. V/s Vidya Bhavan Public School Society ..... Defendant. ------ Dr. V.V. Tulzapurkar with Mr. V.R. Dhond i/b M/s. Nankani & Co. for the plaintiffs. Mr. S.V. Rajeshwar for the defendant. CORAM: V.M.KANADE, J. DATE : 6TH AUGUST, 2008. P.C.: 1. Heard the learned Counsel appearing on behalf of the plaintiffs and the learned Counsel appearing on behalf of the defendants. 2. Suit has been filed by the plaintiffs - society against the defendants for infringement of their trade mark "Bharatiya Vidya Bhavan" and "Bhavan's". Their logo and the artistic design in respect of the said logo have been registered on 04/02/2004. It is the case of the plaintiffs that the word "Bharatiya Vidya Bhavan", therefore, cannot be used by any other person. It is their case that the defendants have used the identically similar sounding name "Vidya 2 Bhavan" and that they have also made advertisements about their School which has been established in 2007 on the website. It is alleged that in the website, they had shown photograph of the Plaintiffs' building and the other details of the plaintiffs' School/Institute also have been mentioned on the website of the defendants. It is stated in the plaint that the plaintiffs have acquired goodwill and reputation and particulars of their income have been mentioned in the plaint. It is the case of the plaintiffs that on 3/11/2001 a Memorandum of Understanding (MOU) was executed between the plaintiff No.1 and SBMMCT which was permitted to establish Schools/Centres in any part of Northern India and to use the words "Bhavan's" and/or "Bharatiya Vidya Bhavan" with the word "Bhavan" written in large front. The said agreement expired and came to an end on 2/11/2004. It is the case of the plaintiffs that one of the persons from the said Society has started his School in the name of "Vidya Bhavan". It is the case of the plaintiffs, therefore, that the defendants have dishonestly used similar sounding name for the said Institution. It is submitted that, therefore, the plaintiffs are entitled to seek an order of injunction in terms of prayer clauses (a), (b) and (c) of the Notice of Motion for infringement of their trade mark/design and for passing of their trade mark by using a deceptively similar mark. 3. Defendants have in their first affidavit in reply dated 9/6/2008 have stated that the word "Bharatiya Vidya Bhavan" cannot be a trade mark. It is stated that the dictionary meaning of the word "Bhavan" is "a building used by an institute" and the English version of the term "Vidya" is "Education". It is their case, therefore, that the plaintiffs 3 cannot claim any right over the said words. It is further the case of the defendants that the plaintiffs have obtained registration of the trade mark by suppressing descriptive significance of the essential features. Thereafter, two affidavits were filed by the defendants; one on 28/7/2008 and the other on 1/8/2008. In the affidavit dated 28/7/2008, it is stated that defendants have discontinued the use of website and it is stated that the use of website has been stopped. In the affidavit dated 1/8/2008 also, the similar averments have been made and Exhibit-A3 to the said affidavit is a page from website of Google which discloses that the said website had expired. In this affidavit, it is further stated that there are similar schools in the country which use the term "Vidya Bhavan". It is, therefore, submitted that the word "Vidya Bhavan" is used by several schools and the plaintiffs cannot claim any right over the said word. 4. It is not possible to accept the submissions made by the learned Counsel appearing on behalf of the defendants. It is an admitted position that the plaintiffs have registered the trade mark in the name of "Bharatiya Vidya Bhavan" and "Bhavan's" and also have registered the logo and design. The defendants, admittedly, have established a School in the name of "Vidya Bhavan". The material on the website, a reference of which is made in the plaint, clearly discloses that an attempt is made to link the defendants' institute with the institute of the plaintiffs. In the website of the defendants, the head office of the plaintiffs' building is depicted in the photograph. Any person viewing such a website would surely be deceived to think that the defendants' school or institute is being run by the plaintiffs. The figures which are shown in the plaint clearly indicate that the plaintiffs have acquired 4 goodwill and reputation. In my view, therefore, a clear case has been made out by the plaintiffs for grant of interim injunction restraining the defendants from using the term "Vidya Bhavan" for their institute. Defendants have already stated on oath that they had discontinued the use of the website. 5. Under these circumstances, there shall be an interim relief in terms of prayer clauses (a), (b) and (c) of the notice of Motion. Notice of motion is disposed of in the above terms. The learned Counsel for the defendants seeks stay of this order. Request is declined. Defendants are given three months time to discontinue the use of the term "Vidya Bhavan" and the logo of the plaintiffs. V.M. KANADE, J.