Delhi HC ruled in favour of “MakeMyTrip”- Temporary ad-interim injunction continues
MAKE MY TRIP (INDIA) PRIVATE LIMITED (hereinafter Plaintiff) sought permanent injunction restraining MAKE MY TRAVEL (INDIA) PRIVATE LIMITED (hereinafter Defendant) from adopting and using the trade mark/trade name ‘Make My Travel’ (word per se), MMT (letter mark) and the tag line ‘Dreams Unlimited’ and MakeMyTravel Logo.
Plaintiff submitted that the infringement and passing off of Plaintiff‟s marks is proved by following factors:
a) Phonetically, visually, structurally and conceptually the competing marks are identical and/or deceptively similar.
b) Identity of idea: The mark MakeMyTravel and MakeMyTrip are combination of three words, where first two words are identical and last word “travel‟ and “trip‟ convey the same meaning, idea and concept
c) Nature of goods and services in respect of which the trademarks are being used are identical.
d) Class of purchasers likely to use services of the Plaintiffs and the Defendants is the same.
Defendant submitted that Plaintiff and its officials were aware that Defendant had incorporated a company by name of Make My Travel (India) Private Limited and is doing business under the name of Make My Travel (India) Private Limited, since the year 2010-2011. There have been several email exchanges between the officials of Plaintiff and officials of Defendant during the period 2011 to 2017. Plaintiff has also acquiesced to the use of trade mark/trade name Make My Travel, MMT and tag line DREAMS UNLIMITED and make my travel logo for a continuous period of five years.
The main thrust of the argument of the Defendant is premised on the ground that Plaintiff‟s suit is not bonafide. Plaintiff has suppressed material facts, and not disclosed that the Defendant and its impugned marks were known to the Plaintiff since the year 2011, contrary to what has been pleaded in the suit.
The main relief sought in the suit is for permanent injunction restraining infringement of trademarks and passing off. Already, the interim injunction dated 17th May 2018 is continuing and the court has been called upon to deliberate upon the question whether the same should be confirmed or vacated.
The Court in depth analysed 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 and tests regarding the infringement. The Court also perused the orders passed by this Court in the case of MakeMyTrip (India) Pvt. Ltd. v. Orbit Corporate Leisure Travels (I) Private Limited(supra) and the Defendant’s plea of regarding suppression of facts and acquiescence.
The Court concluded that significantly, Defendant has no justification or defense for the use of the infringing marks, except for the plea of suppression and acquiescence, both of which would require a further and deeper scrutiny and examination during the course of trial. The Court was of the considered opinion that Plaintiff has a prima facie case and the balance of convenience also lies in favour of the Plaintiff. Irreparable loss would be caused to the Plaintiff if the Defendant is not retrained from using the impugned marks.
Accordingly, the injunction order dated 17th May 2018 was made absolute and shall continue to operate during the pendency of the present suit.
