Tug of war between real estate companies over ‘Lotus’
The dispute between the parties who are in real estate business revolves around the use of the word ‘Lotus’. The Plaintiff, Lotus Green LLP, (Lotus Green) filed the suit before the Delhi High Court to restrain the Defendant, Renowned Buildtech Private Limited (RBPL) from using the mark “Lotus” in relation to their business and obtained an interim injunction. Aggrieved by the restraint order, RBPL filed application to set aside the injunction. The post outlines the respective contentions of the parties and Court’s decision.
Lotus Green in the suit contends:
- It is a family owned partnership firm of Mr. Nirmal Singh and “Lotus” is used as a brand name and is a registered trademark for its real estate business.
- The word “Lotus” as a trade/property mark is associated with them dating back to the year 2004, when Mr. Nirmal Singh, established a Senior Secondary school by the name “Lotus Valley International School” in Noida.
- In 2007, Mr. Nirmal Singh along with two others incorporated M/s. Three C Universal Developers (P) Ltd, under the brand “3 C Company” (3C) for carrying on business in the real estate sector and it was decided that 3C will use “Lotus” as the trade name for its projects.
- They have launched several projects such as Lotus Greens Sports City, Lotus Isle, Lotus Arena, Lotus Arena-2, Lotus Arena-7, etc, and also obtained trademark registrations for the same.
- They have spent considerable amounts of money in sales promotion and advertisements for the ‘Lotus’ branded projects. RBPL’s adoption of the mark ‘Lotus’ in relation to their projects amounts to trademark infringement and passing off.
RBPL in its defence submitted:
- Lotus Green’s claim of having registered the trademark “Lotus” is incorrect. The statements in the plaint shows that the trademarks registered in their name are “Lotus Arena” in class 36 and 37; “Lotus Greens Sports City” in class 36 and 37; “Lotus Isle” in class 36 and 37; “Lotus Arascape” in class 37.
- The word “Lotus” has been used only as a prefix along with another word. The word “Lotus” has individually not been registered in favour of Lotus Green and hence they cannot claim exclusive rights to the use of the word “Lotus”.
- There are several parties using the word Lotus.
- RBPL has no connection with the website www.lotusgreens.net.in and it has been created by Lotus Green to create a cause of action to file the suit at the Delhi High Court.
The following points were considered by the Court:
- Has RBPL infringed the mark “Lotus” of Lotus Green;
- Impact of other parties using the mark “Lotus” as alleged by RBPL; and
- Whether Delhi High Court is appropriate jurisdiction.
The Court after considering the pleadings and arguments made the following observations:
- Lotus is being used as a prefix in all the registered marks or labels by Lotus Green for its real estate projects. RBPL is in an identical line of business is also using the same prefix for same projects. Since both the parties are dealing in the same trade and build projects in the same area, it will create confusion in the mind of a genuine customer and there shall be every chance of passing off RBPL’s flats as that of Lotus Green.
- Lotus Green is the prior and registered proprietor of the trademarks using Lotus as a prefix and RBPL has copied the prominent part of the registered trademarks. As the parties are dealing in an identical business, operating in same vicinity, use of a nearly resembling mark by RBPL would cause loss to the business of Lotus Green. Thus, adoption of a similar mark by RBPL is not honest by any means.
- With regard to the contention that there are several parties using the word Lotus, the Court observed it is for Lotus Green to initiate action against such parties. Moreover, the said contention will not give a right to RBPL to use such mark, especially when they are operating in same vicinity in relation to identical business.
- On the jurisdictional issue the Court noted that as per the averments in the plaint Lotus Green has its registered office in Delhi. Further, RBPL is advertising its services on the website www.lotusgreens.net.in which allegation, though denied, cannot be ignored at the preliminary stage. The website can be accessed and operated from all over the country, including Delhi and, hence, prima facie, the Court has the jurisdiction.
In view of the above the Court confirmed the injunction in favour of Lotus Green.