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2007 DIGILAW 1481 (DEL)

BARISTA COFFEE COMPANY LTD v. ASHOK KURIEN

2007-07-25

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) THE plaintiff has filed the present suit for permanent injunction restraining passing off, dilution of trademark, delivery up, damages etc against the defendants. The plaint states that the plaintiff is the owner of the trademark barista under the common law and the Trademark and Mechandize Marks Act, 1958. The said trademark was adopted by the plaintiff in the year 2000 and the plaintiff claims to have established a reputation as source of quality beverages particularly coffee which are retailed from the plaintiff's 120 cafes in 18 cities of India in addition to a variety of snacks and merchandize such as coffee makers etc. The registration of the trademark BARISTA in India is in classes 9, 11, 21 and 30. ( 2 ) THE word BARISTA is stated to be not only the trademark of the plaintiff but also part of the plaintiff's corporate name and the plaintiff also maintains a website www. barista. co. in. The plaintiff has set out the details of the sales figures for the period 2000-2004 which run into crores. ( 3 ) THE grievance of the plaintiff in the present suit is that a competition by the name of INDIA BARISTA CHAMPIONSHIP was being hosted by defendant no. 2 in bangalore. The plaintiff came across an invitation to the event in January, 2004 The plaintiff sent a legal notices on 19. 01. 2004 and again on 02. 02. 2004 objecting to the same. The response of the defendants did not address the issue but only claimed that the defendants were busy with the organization of the event. Not only that, the invitation was also sent to the plaintiff. The defendants finally sent a detailed response dated 09. 03. 2004 claiming that the plaintiff has been aware of the defendants championship for the past three years which is named after an international event with the mark/name BARISTA which is generic and descriptive in nature. The plaintiff responded by letter dated 04. 08. 2004 denying any acquiescence. It was however pointed that the BARISTA may mean a coffee brewer but the 'coffee brewer' is not descriptive of the word coffee. The plaintiff has alleged in para 15 that the Championship held by the defendants is sponsored by one of the key competitors of the plaintiff and that appears to have aggravated the matter. 2004 denying any acquiescence. It was however pointed that the BARISTA may mean a coffee brewer but the 'coffee brewer' is not descriptive of the word coffee. The plaintiff has alleged in para 15 that the Championship held by the defendants is sponsored by one of the key competitors of the plaintiff and that appears to have aggravated the matter. ( 4 ) SUMMONS were issued in the suit and defendants entered appearance and filed the written statement. The suit was at the stage of framing of issues when request for adjournment was made to settle the dispute but a number of dates went by and finally on 21. 04. 2007 it was stated that the matter be listed today for framing of issues when parties would remain present for recording of statement under Order 10 Rule 2 of CPC. ( 5 ) THE defendants are not present in Court with the result that the consequences of non compliance with the directions under Order 10 Rule 2 of Code of Civil procedure, 1908 ('the said Code' for short)must follow which are contained in rule 4 (2) of Order 10 of the said Code which is as under: 4. Consequence of refusal or inability of pleader to answer (1 ). . . . . (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. ( 6 ) LEARNED counsel for the plaintiff further points out that for the last three years the defendants have been organizing the competition under the name IBC and the plaintiff has no objection to the same. Learned counsel for the plaintiff further states that he presses no other relief except prayer (i) and (ii) of para 20 of the plaint which is for injunction against the use of the plaintiff's trademark BARISTA. Learned counsel for the plaintiff further states that he presses no other relief except prayer (i) and (ii) of para 20 of the plaint which is for injunction against the use of the plaintiff's trademark BARISTA. ( 7 ) IN view of what has been stated in the plaint and the material on record which shows the the plaintiff has a well established trade mark BARISTA having wide sales and in view of the failure of the defendants to appear to answer the queries of the Court under Order 10 Rule 2 of the said Code, a decree in terms of prayer clause (i) and (ii) of para 20 of the plaint is passed in favour of the plaintiff and against the defendants. Counsel for the plaintiff does not press for costs. ( 8 ) DECREE sheet be drawn up accordingly.