GUPTA AND GUPTA PVT LTD vs KHAN CHACHA HYDRABADI BIRYANI AND ORS
Equivalent citations: CS (COMM) 62/2023 & I.A. 2128/2023, I.A. 2129/2023, I.A. 2130/2023,
I.A. 2131/202
Bench: HON’BLE MR. JUSTICE C.HARI SHANKAR
Date of Judgment: 6th February, 2023
Petitioner: GUPTA AND GUPTA PVT LTD
Respondent: KHAN CHACHA HYDRABADI BIRYANI AND ORS
BRIEF FACTS-
The plaintiff Gupta And Gupta Pvt Ltd. holds trade mark registrations for their mark “Khan Chacha” under class 29 and class 43, w.e.f. 23rd October 2009 In each case, the plaintiff claims to be the user of the mark since 1st April 1972. The plaintiff put forward that they have 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 was 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 plaintiff in his plaint alleges that the Respondents 1 to 24 are individuals who are also offering services similar to those of the plaintiff using marks which include the designation
“KHAN CHACHA”, without any authority or consent. The complainant has also submitted evidences for the same in the plaint.
CONTENTIONS FROM THE PLAINT-
The plaint asserts that the usage of “KHAN CHACHA” by Defendants 1 to 24 breaches the trademark registration held by the plaintiff. Defendants 1 to 24 are individuals which, as per the plaintiff, the defendants are using “KHAN CHACHA” as the names of their respective establishments, thereby infringing the plaintiff’s registered trademarks. Defendants 25 and 26 are
entities which provide online services for supply of food and other such items, i.e., Zomato Ltd. and Bundl Technologies Private Limited, which operates under the name Swiggy.
ORDER OF THE COURT-
The Delhi high court In this case passed an ex parte interim injunction order (Order 39 rule 1and2 of Code of Civil Procedure,1908) on 6 th February ,2023. Hon’ble Justice C Hari Shanker ordered that :-
1. “The plaintiff has made out a clear prima facie case of infringement, inasmuch 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.”
2. The Delhi High Court also passed an ex-parte interim injunction order protecting the trademark & Khan Chacha’ against 24 infringers, and directed food delivery apps, Zomato and Swiggy to delist the infringers from their respective mobile applications.
