Hima Kohli ORDER
Hima Kohli, J.
1. The plaintiff has instituted the present suit praying inter alia that the defendant be restrained from infringing its trademark, passing off, unfair competition, damages, rendition of accounts, delivery up etc.
2. Summons were issued in the suit on 03.02.2015. On the same date, an ex-parte ad interim injunction order was passed restraining the defendant, its proprietors, partners, franchisees, officers, servants, agents etc. from using the plaintiff's registered Crescent Design Logo or any variety thereof including the impugned logo in any manner including the social media amounting to infringement of the trademarks of the plaintiff.
3. It was recorded on 11.05.2015 that the defendant had refused service of the summons on 11.04.2015 and as a result, they were deemed to be served. If the date of refusal is taken as 11.04.2015, then at best, the defendant ought to have filed its written statement within 90 days from the said date, which would have expired on 10.07.2015. However, the defendant has neither entered appearance, nor filed the written statement. Accordingly, the defendant is proceeded against ex-parte.
4. Counsel for the plaintiff submits that he has filed an application under Order VIII Rule 10 CPC, (I.A. 16927/2015) praying inter alia that having failed to file the written statement, the suit may be decreed against the defendant and in favour of the plaintiff limited to the relief of permanent injunction, prayed for in paras 39(a), (b) and (c) of the plaint. He submits that the plaintiff is ready and willing to give up the remaining reliefs at paras 39(d) to (h) of the plaint, while reserving its rights to seek its remedies against the defendant if a fresh cause of action arises in the future.
5. The facts of the case as averred in the plaint are that the plaintiff is a company having its principal place of business in Florida, USA. It was founded in the year 1954, when it had commenced its business with one restaurant in Miami, Florida under the name and style of "BURGER KING". The plaintiff has an international and national reputation and operates a worldwide chain of over 13500 fast food restaurants, serving more than 11 million customers on a daily basis in 100 countries and US territories worldwide. It is the second largest fast food hamburger company and employs over 30,300 people directly and through its franchisees.
6. The plaintiff's "BURGER KING" trademark, which is the subject matter of the present suit, is depicted in a logo comprising of a crescent design, which is reproduced hereinebelow:-
7. The aforesaid logo is registered in favour of the plaintiff in over 122 countries worldwide including in India. Apart from the aforesaid logo design, the plaintiff owns over 4000 trademarks and service marks across the world including in India. The trademark, "BURGER KING" and the Crescent Design Logo are well known marks that have been used continuously and extensively in relation to the plaintiff's fast food restaurant services globally. The plaintiff's first Indian "BURGER KING" restaurant was opened at New Delhi on 09.11.2014 and its second "BURGER KING" restaurant was opened in Mumbai in December, 2014, whereafter the plaintiff has expanded its presence in India with 10 more outlets opened/scheduled to be opened in Delhi, Mumbai, Pune and Bangalore. The plaintiff has a website, www.burgerking.com and the said domain name was registered in its favour in November, 1994. It also operates in the social media forum, www.facebook.com, pertaining to its business conducted in India.
8. The revenue sales generated worldwide by the plaintiff's "BURGER KING" restaurants for the years 2004-2013, have been tabulated and placed in para 20 of the plaint. The consolidated global system adv........