CS(OS) No. 1193/2005 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) NO. 1193/2005 Date of Decision 10.09.2010 M/s Flight Center Travels Pvt. Ltd. …… Plaintiff Through: Mr. Ankush Mahajan, Advocate Versus Rahul Nath & Ors. …… Defendants Through: None CORAM : HON’BLE MR. JUSTICE V.K. SHALI 1. Whether Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not ? NO 3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J. 1. This is a suit for permanent injunction filed by the plaintiff for restraining the defendants from infringing the trade mark of the plaintiff and action against passing off and for rendition of accounts etc. 2. Briefly stated the facts of the case are that the plaintiff is a well known Indian Travel Company incorporated on CS(OS) No. 1193/2005 Page 2 of 6 04.04.1994 having its registered office at B-5/157, Safdarjung Enclave, New Delhi-110029. Plaintiff is stated to be carrying on business from property bearing no. B-7/63, Safdarjung Enclave, New Delhi-110029. It is alleged that the plaintiff M/s Flight Center Travels Pvt. Ltd. is a reputed travel agency dealing in booking of air and rail tickets, hotels, resorts and providing medical insurance to its clients travelling abroad. It is stated that on account of its efficient and affordable services it has come to acquire a certain amount of reputation and goodwill in the market. So far as the business of travel agency is concerned, it is alleged that the plaintiff has also located its website at www.flightcenter.co.in. The plaintiff is also accorded an IATA (International Air Transport Association) accreditation and is thus booking air tickets for various foreign airlines like, British Airways, Air France, Lufthansa, Delta, Air India, Cathay Pacific, United Airlines etc. it is alleged that this trade mark ‘Flight Center’ has been in use since 1994 by the plaintiff and the ascendency of the business by this trade mark has been depicted by the plaintiff by referring to the turn over which was 2.87 crores in the year 1995-96 and has increased to 4.51 crores in the year 2004-05. CS(OS) No. 1193/2005 Page 3 of 6 3. It is alleged that the defendant no. 2 is a joint venture company of M/s Friends Globe Travels Ltd./defendant no. 4, M/s Flight Center Ltd., Australia/defendant no.3 and defendant no. 1 appears to be the CEO of the defendant no. 2 who are using the domain name www.flightcenter.com in whose lay out the essential features are almost the same to the website of the plaintiff’s and thereby the defendants are not only infringing the trade mark but also service market of the plaintiff. It is also passing of its services as that of the plaintiff. 4. The defendants were served and they put in appearance through counsel, however, after that they have absented as a consequence of which they were proceeded ex-parte. 5. The plaintiff in support of its case has tendered an affidavit of Shri Ajay Gupta as Exhibit PW-1/A who is one of the Director of the plaintiff’s company and he has proved his additional affidavit as exhibit PW1/X and proved various documents as Ex. PW/1 to PW/13 in substantiating the averments made in the plaint. In his affidavit he has fully supported the averments made in the plaint. The documents which have been proved by him are as follows: CS(OS) No. 1193/2005 Page 4 of 6 Ex.P-1 (Certificate of Incorporation issued by Additional Registrar (NCT of Delhi and Haryana), Ex.P-2 (Print outs of the plaintiffs websites, located at www. Flightcenter.com), Ex.P-3 (Certificate of Accreditation (IATA) ), Ex.P-4 (Certificate of membership 2005-06 issued by the Travel Agents Association of India), Ex.P-5 (Certificate issued by Association of Domestic Tour Operators of India), Ex.P-6 (Invitation of Ajay S. Gupta from The 1994 International Beer, Food and Wine Festival), Ex.P-7 (Travelling tickets), Ex.P-8 (ANA logistics), Ex.P-9 (Letter by fax (legal action for passing off flight centre), Ex.P-10 (Relevant print outs of the defendants’ website located at www.fcmtravel.co.in), Ex.P-11 (News paper dated 5th March, 2005, H.T. Business), Ex.P-12 (Magazine T- 3 (Travel Trends Today) May, 2005, Vol. 25, issue no. 5) and Ex.P- 13 (Letter from the Registrar of Trade Marks Mumbai). 6. I have gone through the averments made in the plaint as well as the affidavit and the documents. The testimony of PW-1 Ajay Gupta has gone completely uncontroverted, therefore, there is no reason as to why the Court should not believe the testimony of Ajay Gupta to the effect that the plaintiff is carrying on the business with the trade name Flight Center since its inception from 1994. It has been duly recognized by Registrar of Trade of its trade mark by the name ‘flight center’ whereupon a website with a domain name has been created. There is no reason as to why it should not be protected against the unscrupulous person using the said trade name with a view to make quick money. The defendants obviously have been accused of having indulged in infringement of the said trade mark as well as indulged in passing of the trade CS(OS) No. 1193/2005 Page 5 of 6 name as that of the plaintiff. The documents have also been duly exhibited, and therefore, I am of the view that the plaintiff has sufficiently proved its case that the defendants are infringing the trade mark of the plaintiff and the plaintiff is entitled to a permanent injunction, restraining the defendants from using the trade mark/service mark by the name of www.flightcenter.com. 7. So far as the question of rendition of accounts and the payment of damages are concerned, the plaintiff has not placed on record either by way of its affidavit or any other material so as to show that the defendants have been making money on account of the said infringement of the trade mark of the plaintiff. Nor it has been proved that it has suffered any damages, and therefore, so far as the rendition of accounts and the payment of damages are concerned, that is not proved, and accordingly, the prayer in that regard is dismissed. 8. For the reasons mentioned above, I am of the considered opinion that the plaintiff is able to prove its case by preponderance of probabilities, so far as the grant of permanent injunction against the defendants from using the CS(OS) No. 1193/2005 Page 6 of 6 trade name is concerned. The defendants are restrained from using the trademark ‘Flight Center’ and or using the mark/trading style ‘Flight Centre’ or any deceptive variant in any manner whatsoever in relation to travel and tour services. So far as the rendition of accounts and the payment of damages is concerned, the plaintiff has not been able to prove the same. Accordingly, the suit is partly decreed as above. Let the decree sheet be drawn accordingly. No order as to costs. V.K. SHALI, J. September 10, 2010 KP