Mukta Gupta JUDGMENT
Mukta Gupta, J.
IA 4462/2016 (u/O XXXIX R 1 & 2 CPC) and IA 6054/2016 (u/O XXXIX R 4 CPC by defendants)
1. Bigtree Entertainment Pvt. Ltd., hereafter referred to as 'plaintiff', in the present suit inter alia seeks permanent injunction against the defendant, its partners, proprietors, or as the case may be, assignees in business franchisees licensees, distributors, dealers and agents from in any manner using the mark "BOOKMYSPORTS", or using the prefix "BOOKMY".
2. As per the plaint, plaintiff company was established in 1999. Through its website "www.bookmyshow.com" and mobile app BOOKMYSHOW, plaintiff provides a range of ticketing solutions through call centers, Internet ticketing, kiosk and a mobile ticketing platform. Since launching of its website in 2007, plaintiff has emerged as a prominent player in the ticketing industry and has established its presence in 26 states in India. Plaintiff has been the official ticketing partner inter alia for major sports events and cinema houses and has placed on record numerous extract of news reports highlighting its extensive coverage in domestic and international markets. Plaintiff has also placed on record its sales figures from 2010-2015 and given examples of various accolades won and capital raised in light of its performance. Plaintiff has secured several trademarks under Classes 41 and 42 for BOOKMYSHOW word marks and logos, notwithstanding filing applications for numerous other BOOKMYSHOW and BOOKMY trademarks as well. Plaintiff has given examples of diligently safeguarding its trademark interests in the past, including against "www.bookmysport.in", who, it is noted, has no relation to defendant. Plaintiff believes that its performance in the ticketing industry and wide publicity since associated with the plaintiff have given the BOOKMYSHOW trademark a secondary meaning associated with high standards of service delivery and professionalism, further claiming that the prefix BOOKMY is an essential part of plaintiff's registered trademark as it has acquired a distinctiveness over a period of time that is exclusively associated with the plaintiff.
3. Brain Seed Sportainment Pvt. Ltd., hereinafter referred to as 'defendant, is a corporate entity incorporated on 15th May, 2015. Defendant's website, "www.bookmysports.com", is an online platform for booking sports facilities. The domain name "www.bookmysports.com" was created on 6th March, 2010. The creator is unknown. During the period 6th March, 2010 to 15th May, 2015, the domain was parked on the World Wide Web with no activity. Archival history reaffirming this was placed on record. Plaintiff claims to have been first aware of defendant's existence in December 2015 after one of its employees found a media article on the Internet detailing the defendant's launch. In the plaint, the plaintiff claims that defendant's trademark is deceptively similar to the plaintiff's and can mislead prospective clients into associating defendant's domain with the plaintiff's due to the substantial goodwill and publicity acquired by plaintiff. Plaintiff contends that this amounts to infringement and passing off of the plaintiff's trademarks. Plaintiff concedes that it does not possess trademark on the prefix BOOKMY but avers that it is not the words BOOK, MY, and SHOW in isolation, but the interplay of these words which give the trademark distinctiveness. Plaintiff claims that continued existence of defendant's domain name is financially highly detrimental and injurious to plaintiff's reputation.
4. When this suit came up on 19th April 2016, this Court granted an ex-parte ad interim order of injunction as prayed for in Clause (a). This interim order was later suspen........