Court rejects acquiescence plea and rule in favour of “Make My Trip”
The conceptual similarity of marks ‘Make My Trip’ and ‘Make My Travel’ and their abbreviation MMT is bone of contention between the parties in travel business. Make My Trip (MM Trip) filed a suit for trademark infringement and passing off against Make My Travel (MM Travel) alleging violation of statutory and common law rights in its Make My Trip marks. MM Trip has sought a restrain order against MM Travel from using the marks ‘Make My Travel’ word and logo, MMT, website www.makemytravelindia.com and the tag line ‘Dreams Unlimited’ in relation to their business.
An ex parte interim injunction was granted in favour of MM Trip, and MM Travels has sought to set aside the injunction.
MM Trip in support of its case argued:
- They were incorporated in the year 2000, and is one of the largest travel companies in India with operations overseas as well. Through its primary website www.makemytrip.com and other technology-enhanced platforms they offer an extensive range of travel services and products.
- They have continuously and uninterruptedly used the trademarks MakeMyTrip, MMT, the tag line “Memories Unlimited” and “Hotels Unlimited’. The MakeMyTrip mark is synonymous with high standards of quality services and they have adopted and used various catchy and stylized logos, all of which contain the MakeMyTrip word mark, as its essential feature.
- In December, 2017, MM Trip became aware of MM Travels infringing use of deceptively similar mark/name that too in relation to identical services. A cease and desist notice to MM Travel was not acted upon.
- Infringement and passing off are made out as (1) MakeMyTrip and MakeMyTravel are a combination of three words where first two words are identical and last word ‘travel’ and ‘trip’ convey the same meaning, idea and concept, (2) the rival marks are visually, structurally and conceptually similar (3) services and target customers are the same.
MM Travel contends:
- There is suppression of material facts. MM Trip was aware of MM Travel since 2011, there have been several email exchanges between the parties during the period 2011 to 2017 and no objection to their use was raised.
- There is acquiescence as they are using MMT, the tagline ‘Dreams Unlimited’ and MakeMyTravel in relation to their business since 2011 which is in the knowledge of MM Trip.
The court after considering the pleadings, arguments and case laws held:
- The first two words of the marks MakeMyTrip and MakeMyTravel are identical, the last words, TRIP and TRAVEL are similar and convey the same idea. Likewise MM Travel’s tag line DREAMS UNLIMITED is deceptively similar to MM Trip’s taglines HOTELS UNLIMITED and MEMORIES UNLIMITED. The services provided under the marks and the customers availing such services are also the same. On the face of it adoption is without any explanation and prima facie appears to be dishonest.
- With regard to suppression of facts MM Trip argues that it is a large organization and has a large franchise network which works independently. Communications relied upon by MM Travels were allegedly exchanged between the booking executives of MM Trip and their franchisees in the year 2011. Further, MM Travels has not placed on record any email communication which they exchanged with the management of MM Trip who ought to be aware of MM Travels existence. Therefore, it is not a case where MM Trip can be held to be guilty of suppression of facts.
- It is judicially settled that to avail a defence of acquiescence, there should be a tacit or an express assent by the plaintiff to the defendant’s using the mark and in a way encouraging the defendants to continue with the business. In other words a mere failure to sue without a positive act of encouragement is no defence and is not acquiescence and there must be the abandonment of the right to exclusivity.
- Significantly, MM Travels has no justification for use of the infringing marks, except for the plea of suppression and acquiescence, both of which would require further scrutiny and examination during the course of trial. MM Trip has a prima facie case and balance of convenience also lies in their favour.
In view of the above the court confirmed the injunction and restrained MM Travels from using the infringing marks, namely Make My Travel, MMT, www.makemytravelindia.com Dreams Unlimited or any other trade mark/trade name identical to and/or deceptively similar to MakMyTrip marks.