Dismissed

Ras Resorts and Apart Hotels Ltd. v. Ras Resorts and 2 Ors.

Bombay HC28 Mar 2016NMS/3709/2011

Case brief

AI extract

What is this about?

In a notice of motion proceeding regarding trademark infringement, the court dismissed the defendant's attempt to set aside the plaintiff's interim order due to default. Confirming the 2011 interim reliefs as final, the court noted the defendant's apparent non-compliance and lack of appearance.

What did the court decide?

The defendant's Notice of Motion No.721 of 2012 was dismissed for default; the ad-interim order of 22nd December 2011 is confirmed as final.

Ras Resorts and Apart Hotels Ltd. Vs Ras Resorts and 2… — Intellectual Property | Bombay HC (2016)

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209 NMS-3709-2011.DOC

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JSN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3709 OF 2011

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IN

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SUIT NO.3022 OF 2011

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Ras Resorts And Apart Hotels Ltd....Plaintiff
Versus
Ras Resort Private Limited...Defendant

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Mr. Ajraj Bagwe, with Ms. Dipti Vora, Priya Thakkar, i/b. M/s.
Jehangir Gulabbhai & Billimoria & Daruwalla for the Plaintiff.
None for the Defendant.

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CORAM:G.S. PATEL, J.
DATED:28th March 2016

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P.C.

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1. Heard.

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2. The Notice of Motion has been served. An Affidavit in Reply is on record. So is a Written Statement to the Plaint. The Plaintiff has filed two Affidavits in Rejoinder.

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3.The present Notice of Motion No.3709 of 2011 seeks interim
reliefs in an action for infringement and passing off. The mark in
question is both a trademark and service mark. It relates to the

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209 NMS-3709-2011.DOC

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Plaintiff’s hotels and hospitality facilities inter alia in Mumbai and
Silvassa.

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4.On 22nd December 2011, Mr. Justice S.J. Vazifdar (as he
then was) granted leave under Clause XIV of the Letters Patent and
also granted ad-interim reliefs in terms of prayer clauses (a), (b) and
(c) of the present Notice of Motion. Mr. Justice Vazifdar noted the
value of the Plaintiff’s services, their advertisement expenses, and
also the fact that the Plaintiff has registered the domain name
www.rasresorts.com. He also noted that the Defendants use an
identical name “RAS RESORTS” for their property at Kufri near
Shimla. The Defendants have adopted a competing internet domain
name, www.rasresortshimla.com. The Court noted that there was
no reply to the cease and desist notice.

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5.It appears that thereafter the Defendants filed Notice of
Motion No.721 of 2012 seeking to set aside the previous order
dated 22nd December 2011. The only ground that was apparently
taken was that the Defendants were not concerned with the subject
matter of the Suit. Mr. Justice Vazifadar held by his order dated
22nd March 2012 that if the Defendants were not concerned with
the subject matter of the Suit, the ad-interim order could not
possibly affect them at all. Ad-interim orders were refused to the
Defendants; and their Notice of Motion was directed to be heard in
the normal course.

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6.Mr. Bagwe for the Plaintiffs points out that despite making
several assertions in the Written Statement, the fact of the matter is
that the Defendants are even today using the mark that is impugned

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209 NMS-3709-2011.DOC

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in this Suit and that they continue to do so even after and despite
the ad-interim order of 22nd December 2011. Prima facie this
appears to be so. There is nothing on record to indicate that the
Defendants have ceased use of the impugned mark. Indeed the
Written Statement itself indicates that the Defendants have
defended their use of the impugned mark throughout.

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7.Today none appears for the Defendants even though the
appearance of the Defendants is correctly shown. The matter is
listed at Sr. No.209 on the Weekly Board that was notified well in
advance, one week ago, along with accompanying notice that for
this week Intellectual Property Notices of Motion as listed on the
weekly board would be taken up in serial order.

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8.In these circumstances I see no reason to keep the
Defendants’ Notice of Motion No.721 of 2012 pending. For that
matter I see no reason why Plaintiff should be driven to waiting for
yet another date for a final order on the Notice of Motion. Since it
prima facie appears that the Defendants are and have been in
contempt of the ad-interim order of this Court, there is no reason
why the defence should be countenanced at all.

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9.The Defendants’ Notice of Motion No.721 of 2012, also
listed today, is dismissed for default. The ad-interim order dated
22nd December 2011 in terms of prayer clauses (a), (b) and (c) is
confirmed as the final order on the Plaintiff’s Notice of Motion
No.3709 of 2011. Both Notices of Motion are disposed of in these
terms. There will be no order as to costs.

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209 NMS-3709-2011.DOC

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10.It is clarified that the disposal of the Notices of Motion does
not mean that the Plaintiffs are in any way restrained from adopting
suitable proceedings in contempt, if so advised. All contentions in
that behalf are kept open.

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(G. S. PATEL, J.)

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Note:This order is modified as per order dated 4th April 2016
passed on a praecipe for Speaking to the Minutes of original order.
The corrections are shown in bold, italicize and underline.

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Ras Resorts and Apart Hotels Ltd. v. Ras Resorts and 2 Ors.

Case brief

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Ras Resorts and Apart Hotels Ltd. v. Ras Resorts and 2 Ors.

Case brief

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