Delhi High Court: The present suit was filed by plaintiff, Impresario Entertainment and Hospitality (P) Ltd. seeking enforcement and protection of its trade mark/service mark ‘SOCIAL’, used in respect of restaurants, coffee shops and other eating outlets. Prathiba M. Singh, J., directed that defendant through its proprietor, Debaditya Chaudhury shall stand restrained from using the mark ‘CHINA SOCIAL’ or any other mark or name for services related to food, including restaurants, cafes, etc., under the mark ‘CHINA SOCIAL’ or any other mark which consisted of the word ‘SOCIAL’ or any other deceptively similar mark/name from 01-01-2024.
Background
Plaintiff was engaged in managing restaurants, coffee shops, cafes, etc., under the trade mark ‘SOCIAL’. The names used by plaintiff for the outlets/restaurants included Smoke House Deli, Salt Water Cafe, Le Kebabiere, the Tasting Room, Prithvi Cafe, Flea Bazar and Social. The name/mark of plaintiff was registered in classes 43, 41, 35, 33, 32, 30, 25, 21, 16 and 9. Plaintiff enjoyed a word mark registration in Class 43 for the mark ‘SOCIAL’. Plaintiff submitted that the concept of its outlets named ‘SOCIAL’ was to create a place where people could meet and socialize, Hence, the names were derived based on the names of the cities, areas, and colonies, combined with the word ‘SOCIAL’.
Plaintiff’s grievance was that defendant, Debaditya Chaudhury was running a cloud kitchen by the name ‘CHINA SOCIAL’ and plaintiff became aware of the same only in August 2023, when plaintiff came across listings on Zomato, Delhi and Zomato, Calcutta. Further, it was averred that defendant was promoting its cloud kitchen with the impugned Trade mark ‘CHINA SOCIAL’ not only on restaurant search engines but also on the social networking platform, Instagram. Counsel for plaintiff submitted that defendant also operated a cloud kitchen by the name ‘CHOWMAN’ and the adoption of the name ‘CHINA SOCIAL’ was thus only to ride piggyback on plaintiff’s goodwill and reputation.
Comparison of plaintiff’s and defendant’s marks:
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Plaintiff’s Trade Mark |
Defendant’s Trade Mark |
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|
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SOCIAL |
CHINA SOCIAL |
Analysis, Law, and Decision
The Court, after considering that plaintiff was a prior adopter and user of the registered trade mark SOCIAL’ and its variants, opined that use of the impugned mark by defendant amounted to infringement under Section 29 of the Trade Marks Act, 1999. The Court opined that defendant’s adoption was very recent i.e., December 2022, and it had used the mark ‘SOCIAL’ for identical services i.e., eating and food preparations which would lead to confusion and deception and it was clear that the adoption of a deceptively similar trade mark by defendant ‘CHINA SOCIAL’ was aimed at passing off its services as that of plaintiff. The Court observed that there was every likelihood of defendant’s cloud kitchen services being perceived as another extension of plaintiff’s services owing to the nature of the SOCIAL series of marks used by plaintiff.
The Court relied on Laxmikant V. Patel v. Chetanbhai Shah, (2002) 3 SCC 65 and opined that plaintiff had made out a prima facie case for grant of an ex-parte ad-interim injunction and balance of convenience lied with plaintiff, and if ex-parte injunction was not granted, irreparable harm would be caused to plaintiff.
The Court considered the fact that defendant operated multiple cloud kitchen services under the name ‘CHINA SOCIAL’, and thus granted some time to defendant to change the said impugned mark/name or to approach this Court by way of an appropriate application. Thus, the Court directed that defendant through its proprietor, Debaditya Chaudhury shall stand restrained from using the mark ‘CHINA SOCIAL’ or any other mark or name for services related to food, including restaurants, cafes, etc., under the mark ‘CHINA SOCIAL’ or any other mark which consisted of the word ‘SOCIAL’ or any other deceptively similar mark/name. The Court further directed that the injunction order would come into operation from 01-01-2024.
The matter would next be listed on 17-01-2024.
[Impresario Entertainment and Hospitality (P) Ltd. v. China Social, 2023 SCC OnLine Del 6927, Order dated 06-10-2023]
Advocates who appeared in this case :
For the Plaintiff: Shikha Sachdeva, Mugdha Palsule, Devika Gupta, Advocates
Buy Trade Marks Act, 1999 HERE
