In a Suit Tittled as GUPTA AND GUPTA PVT LTD versus KHAN CHACHA HYDRABADI BIRYANI AND ORS, Hon’ble High Court of Delhi, restrained the Defendants from 1 to 24 from using or advertising, directly or indirectly, any mark which includes the words “KHAN CHACHA”, for services identical or allied to the services used by Plaintiff.
PLAINTIFF SUBMISSIONS
The Present suit was filed by the Plaintiff in relation to save its trademark from misuse by the Defendants and from using its registered Trademark ‘KHAN CHACHA‘ which is used by the Plaintiff in relation to Meat, Fish, Poultry & Game, Meat Extracts, Preserved, Dried And Cooked Fruits And Vegetables, Milk And Other Dairy Products, Edible Oils And Fats, Pickles, Hydrogenated Vegetable Oil (Vanaspati), Groundnut Oil, Cotton Seed Oil, Cheese, Butter, Ghee, Artificial Butter, Milk Powder, Refined Vegetable Oil, Rasogulla, Frozen Boneless Meat, Jellies, Jams, Eggs, marmalades, Snopextracts and Tablets since 2009 in class 23 , and in Class 43, which covers restaurants, Catering, Canteens, Cafes, Cafeterias, accommodation (Rental of Temporary), Accommodation Bureaux (Hotels Hoarding House), Bath for Hygiene Purposes (Public-), Beauty Salons, Camp Services (Holiday-) [Lodging], Cocktail Lounge Services, Flower Arranging, Healthcare, Homes (Tourist-), Hotel Reservations, Hotels, houses (Boarding-) information (fashion-), Tourist Homes, Salons (Hairdressing)”, w.e.f. 23rd October 2009. In each case, the plaintiff claimed user of the mark since 1st April 1972.
The plaintiff submitted that it has been using the “KHAN CHACHA” trademark continuously since 1972 for food items as well as for providing restaurants services, which are also enlisted on various websites which provide online catering services. It is further asserted in the plaint that the mark “KHAN CHACHA” is inventive and arbitrary with respect to the nature of services for which the mark is listed and in respect of which it is used.
The plaint mentioned the usage of “KHAN CHACHA” by Defendant 1 to 24 infringes the aforenoted registration held by the plaintiff. Defendants 1 to 24 are entities which, according to the plaintiff, are using “KHAN CHACHA” as the names of their respective establishments, thereby infringing the plaintiff’s registered trademarks. Defendants 25 to 26 are entities which provide online services for supply of food and other such items, namely, Zomato Ltd. and Bundl Technologies Private Limited, which functions under the name Swiggy.
In these circumstances, the plaintiff asked for a decree of injunction against Defendants 1 to 24 from using, advertising or promoting, directly or indirectly, the mark “KHAN CHACHA”. Additionally, the plaint prayed that Defendants 25 and 26 be directed to delist/take down the listings bearing “KHAN CHACHA”.
HON’BLE DELHI HIGH COURT DECISION
Court said, that the plaintiff has made out a clear prima facie case of infringement, as the word mark “KHAN CHACHA” has been registered in the plaintiff’s favour both in class 29 as well as in class 43, with user claim since 1972. Usage of the “KHAN CHACHA” moniker, by any other entities for similar services, would, therefore, clearly infringe the plaintiff’s registered mark within the meaning of Section 29(1) of the Trade Marks Act, 1999.
An exparte ad interim injunction was granted in favour of Plaintiff and against Defendant no.1 to 24.
Submitted by Neeraj Gogia,Advocate