MakeMyTrip accused of stifling competition; injunction in its favour set aside
In Makemytrip (India) Private Limited v Orbit Corporate Leisure Travels (I) Private Limited, a travel company, MakeMyTrip (India) Private Limited, sought to restrain use of the mark GETMYTRIP on the basis of its registered rights in the mark MAKEMYTRIP. At the time of admission of the suit, an ex parte interiminjunction was granted by the Delhi High Court in favour of MakeMyTrip. The injunction was challenged byOrbit Corporate Leisure Travels (I) Private Limited, owner of GETMYTRIP, and an application was filed to setaside the injunction order.
MakeMyTrip’s case was as follows:
- It is one of the largest travel companies in India. It has expanded its business through its primarywebsite, www.makemytrip.com, and application-based mobile platforms. It offers an extensive rangeof travel services and products, both in India and abroad, including the booking of air tickets, hotelreservations, car hire, and domestic and international holiday packages.
- ‘MakeMyTrip’ is a coined word which is an essential feature of all the composite label/logo marks ofMakeMyTrip; due to its extensive use, it is synonymous with the company’s quality services. Theuse of the ‘my’ device in a stylised manner with other artistic elements and colour combinations inthe MakeMyTrip logo is highly distinctive.
- It is the registered proprietor of a number of MAKEMYTRIP marks, and several applications arepending both in India and in other countries.
- Orbit is engaged in the identical business of travel-related services, including – but not limited to – thebooking and selling tickets, hotel reservations, and arranging trips in India and abroad. In April 2017MakeMyTrip became aware that Orbit had filed an application for the registration of the trademarkGETMYTRIP, which is deceptively similar to MakeMyTrip’s word mark MAKEMYTRIP.This amounted to trademark and copyright infringement.
Orbit contested the matter and applied to set aside the injunction on the following grounds:
- MakeMyTrip had concealed material facts, as it had prior knowledge of the use of the trademark GETMYTRIP through its predecessor-in-interest, Hermes Tickets Private Limited.
- Orbit had been operating a business-to-business model, whereas MakeMyTrip operates a businessto-consumer model. Thus, there would be no confusion.
- Orbit’s new venture in the business-to-consumer space is under the trade name Goomo, and notGetMyTrip. Acquiescence, delay and latches disentitled MakeMyTrip from receiving an injunction inits favour.
- MakeMyTrip had been aware of the trademark GETMYTRIP and the internet platform atwww.getmytrip.com since 2011. MakeMyTrip had been transacting business through its e-commerceplatform (www.getmytrip.com) with Orbit, as well as Hermes. The screenshot of an email datedNovember 20 2013 between MakeMyTrip and Hermes was placed on record.
- In order to stifle competition, MakeMyTrip had filed the present suit to stop Orbit’s new venture under the mark GOOMO.
After considering the pleadings, documents, previous decisions and oral arguments, the court held as follows:
- The documents and pleadings evidenced that MakeMyTrip had had a business relationship withHermes, the predecessor-in-interest of Orbit, at least since September 2011. MakeMyTrip’s avermentthat the cause of action had arisen only in April 2017 was not correct, as it had been aware of theGETMYTRIP mark and domain name as early as 2011.
- MakeMyTrip’s contention that it was objecting to Orbit’s use of the GETMYTRIP mark as it operateda business-to-consumer model was also incorrect. Documents placed on record evidenced thatHermes, in the year 2012, was also operating a business-to-consumer model, and not just a business-to-business model.
- MakeMyTrip was guilty of suppression of facts, as it failed to disclose the agreement with Hermeswhich would show that Hermes was using the trademark GEYMYTRIP and domain name’www.getmytrip.com’, and that MakeMyTrip was aware of the same. Moreover, considering thatMakeMyTrip’s request for an injunction was not only against Orbit, but also its franchiseesand agents, and as it had allowed Hermes to use the trademark GETMYTRIP for a long time, nocase was made out for the grant of an interim injunction.
The court thus set aside the injunction granted in favour of MakeMyTrip.
The Indian travel and tourism market is growing rapidly, and is estimated to be worth over $30 billion. Thus, IP and technology are becoming important factors in retaining and growing this hyper-competitive market.
The article was published in World Trademark Review: http://www.worldtrademarkreview.com/daily/detail.aspx?g=07fd2f1f-46a5-4d2b-a7f9-9941d9a3f522