ENTERTAINMENT NETWORK (INDIA) LTD. Vs. HT MEDIA LIMITED

JUDGEMENT

(1.) Plaintiff has filed this suit seeking inter alia the relief of injunction against the defendant by pleading that plaintiff is the exclusive owner of the trademark 'Pehla Nasha' which is used by the plaintiff with respect to an internet radio channel, and that consequently the defendant be injuncted from using the trademark /trade name 'Radio Nasha' and under which trademark/tradename the defendant is running an FM Radio Channel/Station.

(2.) As per the plaint, the plaintiff operates an internet Radio Channel 'Radio Mirchi' besides also using this trademark radio mirchi for the plaintiff's FM Radio Station. There is a sub -channel of Radio Mirchi internet channel which provides music and songs to its listerns, and this sub -channel has as its trademark 'Pehla Nasha'. The case of the plaintiff is that the word 'Nasha' forming part of its trademark 'Pehla Nasha' is very much in the ownership of the larger trademark 'Pehla Nasha' of the plaintiff, and that defendant by cannibalizing the word 'Nasha' from the trademark 'Pehla Nasha' cannot use the word 'Nasha' in the defendant's FM Radio 'Radio Nasha'.

(3.) This suit came up for the first time on 11.03.2016 when the matter was adjourned for 14.03.2016 to enable the defendant to file an affidavit inasmuch as defendant inter alia set up a defence that the plaintiff was not the exclusive owner of the trademark 'Nasha' forming part of trademark 'Pehla Nasha' inasmuch as the defendant argued that there were other music and songs suppliers; whether they be through internet channels or through the normal radio channels; who use the expression 'Nasha' as part of their trademark/trade name and which suppliers were in business were prior to the first use by the plaintiff of 'Pehla Nasha' in the year 2014. Hence, the defendant argues that the plaintiff was not entitled to injunction in view of the ratio of a Division Bench Judgment of this Court in the case of Goenka Institute of Education & Research Vs. Anjani Kumar Goenka : ILR 2009 (vi) Delhi 415 which holds that a plaintiff cannot claim exclusive ownership of trademark where others have used the trademark prior to the plaintiff.