Rajiv Sahai Endlaw JUDGMENT
Rajiv Sahai Endlaw, J.
IA No. 3316/2016 (of the plaintiff under Order XXXIX Rules 1 & 2 CPC).
1. The plaintiff has instituted this suit inter alia for permanent injunction restraining the defendant from using any trade mark that is identical or deceptively similar of the plaintiff's trade mark 'PEHLA NASHA', either as a radio channel titled 'RADIO NASHA' or a trade mark, trading style, name, logo, part of name or in any other manner.
2. The suit came up first before this Court on 11th March, 2016 when the senior counsel for the defendant appeared and the hearing was adjourned to 14th March, 2016.
3. On 14th March, 2016, the counsel for the defendant handed over an affidavit and the proceedings were again adjourned to enable the counsel for the plaintiff to respond thereto. On 17th March, 2016, though summons of the suit were issued but ad interim order of injunction as sought by the plaintiff not granted. The plaintiff preferred FAO (OS) (COMM.) No. 8/2016 against non-grant of interim order and which was dismissed vide order dated 21st March, 2016.
4. The defendant has filed its written statement and the counsels for the parties were heard on 26th July, 2016, 8th August, 2016, 29th August, 2016 and 27th October, 2016 when orders on this application were reserved.
5. It is the case of the plaintiff in the plaint, that (i) the plaintiff operates in the radio broadcasting and experiential marketing segment under its trade mark/brand name/logo 'RADIO MIRCHI' along with Mirchi logo; (ii) the plaintiff also operates its radio stations through its website www.radiomirchi.com and gaana.com; (iii) in the year 2014, radio channel Radio Mirchi launched its 24-hours non-stop free internet radio channel/station under the trade mark/brand name 'PEHLA NASHA'; the said channel is powered by Gaana.com which is a commercial music streaming service providing free and licensed music content to the public; (iv) the internet based radio channel of the plaintiff under the trade mark 'PEHLA NASHA' caters to the gap between retro and contemporary music hits and promotes and broadcasts content belonging to a specific period of time, being the 1990s; (v) the plaintiff has applied for trade mark registration of 'PEHLA NASHA' in various classes; (vi) that the plaintiff's free internet radio channel under the trade mark/brand name 'PEHLA NASHA' has gained immense popularity and recognition and has accumulated a wide listener base; (vii) that the defendant airs its radio channels through radio station titled "Fever 104 FM" which is a direct competitor of the plaintiff's Radio Mirchi; (viii) that the defendant, just prior to the institution of the suit has launched a new FM radio channel under the name/mark 'RADIO NASHA' wherein they are using nearly identical/deceptively similar mark as that of the plaintiff as its channel/brand name, to usurp the well established goodwill and reputation of the plaintiff; (ix) the plaintiff has learnt that the defendant has also applied for registration as trade mark of 'RADIO NASHA'; (x) the plaintiff, on 22nd February, 2016, complained to the Ministry of Information and Broadcasting to not approve 'NASHA' as the brand name for any FM Broadcaster since the plaintiff was the prior adopter thereof; (xi) that the defendant's mark/name 'RADIO NASHA' is completely devoid of any originality and creativity and is a blatant and deliberate attempt to copy the key element of the plaintiff's mark 'PEHLA NASHA'; (xii) the defendant is also advertising to be the first retro station playing music of 1970s to 1990s; and, (xiii) that the defendant is attempting to pass off its services as that of the plaintiff.
6. The defendant, in its affidavit handed over in the Court on 14th March, 20........