Mukta Gupta JUDGMENT
Mukta Gupta, J.
1. Entertainment Network (India) Ltd. (in short 'Entertainment Network') instituted a suit against HT Media Limited which was registered as CS (Comm) No. 179/2016. The prayer made was to grant a declaration that plaintiff's trademark 'PEHLA NASHA' is a well known mark and by using the trademark 'NASHA FM', 'RADIO NASHA', 'NASHA 91.9. FM' AND 'NASHA 107.02' the defendant was guilty of passing of and therefore should be restrained by issuing a permanent injunction against it, its agents, franchisees etc. restraining them from using, in any manner, trademark identical or deceptively similar to the plaintiff's trademark 'PEHLA NASHA' either as radio channel titled 'RADIO NASHA' or as a mark or as a domain name in relation to any service/product especially for broadcast, re-broadcast, radio broadcast, internet broadcast, make available for listening, and/or in any other form whatsoever.
2. Plaintiff having applied for its trademark to be registered and registration not being granted till when the suit was filed, it is obviously an action for passing of.
3. The claim of Entertainment Network in the plaint is that it is operating Online Internet Radio Station using the mark 'PEHLA NASHA' since the year 2014 and it has gained immense popularity and goodwill. By launching 'RADIO NASHA', HT Media is infringing its right in the trademark 'NASHA' for which its application for registration was pending before the Registrar of Trademarks. The suit was brought after it came to the knowledge of Entertainment Network that HT Media had applied for trademark registration for several marks including 'NASHA FM', 'RADIO NASHA', 'NASHA 91.9 FM', 'NASHA 107.02' etc. in relation to radio and television broadcasting services.
4. Along with the suit, Entertainment Network filed I.A. No. 3316/2016, under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure seeking ex-parte ad-interim injunction against HT Media from using the word/trademark 'RADIO NASHA' or any other trademark/trade name which is deceptively similar to the plaintiff's mark 'PEHLA NASHA'.
5. The suit came up for admission on March 11, 2016 when it was adjourned for March 14, 2016. Having inkling that a suit may be filed against it, HT Media entered appearance on March 14, 2016 to oppose grant of any ex-parte ad-interim injunction. Entertainment Network pressed for an injunction to be issued forthwith and HT Media opposed it. To defeat the grant of an ad-interim injunction HT Media was granted time to file an affidavit because its counsel stated that a large number of service providers were using the word 'NASHA' as a part of their trademark, and if this was prima-facie correct, it may be difficult to grant an ad-interim injunction. The debate had then to be postponed to a date when pleadings were completed and a holistic view could be taken by the Court.
6. HT Media accordingly filed an affidavit on March 14, 2016 listing numerous parties who were using the word 'NASHA' in the field of music including internet Music Streaming Websites. The affidavit lists a number of radio stations/music streaming websites/persons who are using the word 'NASHA' as a part of their domain name in the entertainment sector, of which nine are presently available. In response to this affidavit dated March 14, 2016, Entertainment Network filed an affidavit on March 16, 2016 whereafter the matter was heard and order pronounced on March 17, 2016 by the learned Single Judge.
7. The learned Single Judge has dealt with the singular issue :
Whether case was made out to grant a pro tem interim order while granting time to HT Media to file their pleadings.
8. When the present appeal came up for hearing before us on March 18, 2016 both parties........