Tejaswita
Claimant who knowingly sleeps over its rights cannot complain later- he is not entitled to any relief
Tejaswita 1 Nov 2016

Claimant who knowingly sleeps over its rights cannot complain later- he is not entitled to any relief

In the recent case of People Interactive (I) Pvt. Ltd v. Vivek Pahwa and Ors., Notice of Motion No. 1687 of 2015 in Suit No. 846 of 2015 dated 14.09.2016 (link- https://indiankanoon.org/doc/9121927/ ), the Hon’ble High Court of Mumbai rejected the relief sought by the Plaintiff which is the owner of the Shaadi.com sought to restrain the Defendants from using the domain name www.SecondShaadi.com.

The Plaintiff contended that his business was a household name and had acquired substantial goodwill and that the defendant’s adoption of the domain name www.secondshadi.com was an attempt to ride the wave of the Plaintiff's success. There was every chance that the general public would confuse the contesting Defendants' mark with the Plaintiff's because the word ‘shaadi’ is the ‘essential feature’ of the Plaintiff's mark, and when used in relation to matrimonial services is associated with the Plaintiff's website alone.

The defendants submitted that the word “shaadi” is generic and submitted a list of 29 websites that used the word in their domain names. It was noted that the Plaintiff acquired the knowledge of the defendants website in 2007 when it sent a cease and desist notice to the defendent. Thereafter, only in 2013 was when the Plaintiff took further steps and sent another notice. The Plaintiff sat idle for almost six years despite knowing that the Defendant was using the domain name secondshadi.com.

The court observed that the Defendants place the word ‘second’ prominently above ‘shaadi.com’. The domain name is secondshaadi.com, a sufficient variation. Below the expression ‘shaadi.com’ is the tagline “Start a New Life”, which is in no manner similar to the Plaintiff's tagline “The World's No. 1 Matchmaking Service”. The font and stylization of the contesting Defendants' mark is completely different from that of the Plaintiff. So, too, is the get up and look-and-feel of the two websites.

Prima facie, the Court held that the Plaintiff's mark is generic and commonly descriptive, and it is an address of an Internet destination. There is no question of it ‘now’ referring exclusively to the Plaintiff's website; it never pointed to anything else. But that does not make it a trade mark. Being generic, commonly descriptive and an Internet address, the slightest differentiation is enough. Absent any proof of passing off or deceit the Plaintiff is not entitled to an injunction.

Acquiescence is a species of estoppel, and that makes it both a rule of evidence and a doctrine in equity. Where a party with knowledge of its rights stands silent and watches another deal with the property in a manner inconsistent with the claimant's right; and where the claimant makes no objection while the act continues, progresses and grows, he cannot later be heard to complain.   

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