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2016 (9) TMI 1643 - HC - Indian LawsSeeking restraint from using the domain name secondshaadi.com in any manner, including as part of the domain name for their web-based matrimonial services - seeking restraint on contesting Defendants from passing off their website as that of the Plaintiff - restraint on Defendant No. 5, a webhost and a domain name registrar, from hosting the contesting Defendants’ website - seeking to direct it to de-register or terminate the contesting Defendants’ domain name registration - HELD THAT:- Both shaadi.com and secondshaadi.com are generic or commonly descriptive of their services (and each service is distinguishable), then Section 30(2)(a) must apply. Further, if these expressions commonly describe the nature of the services, then this use is also protected by Section 35. In Notice of Motion (L) No. 2312 of 2014, I granted the Plaintiff an injunction against the proprietors of www.getshaadi.com. Plaint, Exhibit “F1”, p. 107–120 That relief, however, was in passing off. On those defendants’ website, the emphasis was on the words ‘shaadi.com’, and the word ‘get’ was set off above the word ‘shaadi’. The attempt was ex facie deceitful: those defendants attempted to divert traffic from the Plaintiff’s site to theirs. This is certainly not so in the present case - There is also a device of what is presumably a leaf placed by the word ‘second’. 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. In Notice of Motion (L) 1504 of 2014, where the offending website was ShaadiHiShaadi.com, I granted the Plaintiff interim reliefs since, on comparing the two websites, I found very many similarities. Plaint, Exhibit “F2”, pp. 121–129 Although the get up of the two websites was not identical, the defendants used the tagline “World’s Biggest Matrimonial Service”, which was far too similar to the Plaintiff’s tagline (as it then was), “The World’s Largest Matrimonial Service”. Evidently, this was merely an attempt by those defendants to create an illicit association with the Plaintiff’s website, since those defendants’ website was nowhere close to being the “World’s Biggest Matrimonial Service”. Those defendants used code to divert traffic headed for the Plaintiff’s site to their own, a case that is pleaded but not pressed in the present case, and which, in any case, is unsupported by any cogent material. 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. A trade mark proprietor who, not ignorant of his rights, sits on his hands and watches his competitor grow in the market, taking no action while the other does not, can claim no exclusivity. He must be deemed to have affirmed his rival’s use of the mark. The Notice of Motion fails. It is dismissed, with no order as to costs.
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