Delhi High Court: In a civil suit filed by the plaintiff, Zenith Dance Institute (P) Ltd. seeking injunctive relief, a Single Judge Bench of C. Hari Shankar, J.*, held that the plaintiff was entitled to interlocutory injunction as the marks of the defendant, Zenith Dancing and Music infringed the registered 
mark of the plaintiff, within the meaning of Section 29(2)(b) of the Trade Marks Act, 1999 ( ‘TM Act’).
Brief Facts
The plaintiff alleged that, by using the mark ”ZENITH” for dance institutes run by it, the defendant was infringing the registered trade marks of the plaintiff and was also passing off the services rendered by it as those rendered by the plaintiff. Accordingly, the plaintiff had filed the present suit before this Court, seeking an injunction, restraining the defendant from providing services under the mark “ZENITH”. The plaintiff had also filed with the plaint under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (‘CPC'), seeking interlocutory injunctive reliefs. On 22-1-2021, this Court passed an ex parte ad interim order, restraining the defendant, as well as all others acting on its behalf, from directly or indirectly dealing in goods or services bearing the mark ZENITH, or any other deceptively similar mark.
Analysis, Law, and Decision
The Court relied on Raman Kwatra v. K.E.I. Industries Ltd. (‘Raman Kwatra Case'), (2023) SCC OnLine Del 38, and opined that the enunciation of law in Raman Kwatra case (supra) would be applicable mutatis mutandis to the present case. The Court noted that the plaintiff submitted that the use, by the defendant, of “ZENITH” as any part of its mark, would infringe the plaintiff‘s registered device mark 
and its registered word mark ZENITH ARTS. The Court opined that it was clearly not open to the plaintiff, in the present proceedings, to plead that, because of the use of the 
mark by the defendant, there was likelihood of confusion or deception, or of an association, between the mark of the defendant and the ZENITH ARTS mark of the plaintiff. The Court further opined that it was not open to the plaintiff to plead that the mark of the defendant was confusingly or deceptively similar to the ZENITH ARTS word mark of the plaintiff. Thus, the Court held that the plea of confusing or deceptive similarity of the mark of the defendant, and the ZENITH ARTS word mark of the plaintiff had to be rejected.
The Court opined that the principles enunciated in Raman Kawatra case would estop the plaintiff only from pleading that the logo of the defendant was confusingly or deceptively similar to the ZENITH ARTS registered trade mark of the plaintiff. The reason was not because of any actual similarity or dissimilarity between the two marks, but because, having obtained registration of the ZENITH ARTS mark by pleading dissimilarity vis-à-vis the defendant‘s mark, the plaintiff could not now seek to injunct the use of the mark on the ground that it was confusingly or deceptively similar to the ZENITH ARTS mark of the plaintiff.
The Court opined that the word “Zenith” was the distinctive feature of both the plaintiff‘s and the defendant‘s marks, and both marks were used for providing education in dance. Thus, there was bound to be a customer overlap in the marks of the plaintiff and the defendant. The use of “Zenith” as part of the mark of the defendant was bound, therefore, to create confusion in the mind of a customer of average intelligence and imperfect recollection.
. The Court opined that there was another important feature of the defendant‘s mark in the present case, which might exacerbate the possibility of confusion, that is, the 
‘ZD’ logo, which formed a distinctive part of the overall device mark by the defendant which was invalidated by the Intellectual Property Appellate Board (‘IPAB’). The Court further opined that by continuing to use the “ZD” logo which was a prominent feature of the invalidated device mark in its 
and 
marks, the defendant had exposed its later device marks/logos to vulnerability on the ground of infringement.
The Court further opined that the word “Zenith” could not be regarded as publici juris or as descriptive of the services provided. The Court further opined that the word “Zenith” could not be treated as a mark which was lacking in distinctive character, such as to disentitle itself to any claim to monopoly. Thus, the submission by the defendant's counsel that “ZENITH” being a word of common usage, the plaintiff could not claim monopoly over it, could not be sustained. The Court observed that w.e.f. 7-6-2007, when the device mark stood registered in favour of the plaintiff‘s predecessor-in-interest, the use, by the defendant, of ”ZENITH” as part of its mark/trade name, for providing dance services, or services relating to dance education, was infringing in nature. The Court opined that at a prima facie stage, it was inclined to extend, to the plaintiff, the benefit of user, by Ritu Kapoor, of “ZENITH” as a part of the mark of the institute which she was running, i.e., Zenith Dance Institute”, at least w.e.f. 1999.The Court held that the plaintiff was entitled to interlocutory injunction as the defendant‘s marks infringed the registered of the plaintiff, within the meaning of Section 29(2)(b) of the TM Act. The Court further held that the ad-interim injunction granted by this Court on 22-1-2021 was made absolute pending disposal of the present suit.
[Zenith Dance Institute Pvt. Ltd. v. Zenith Dancing and Music, 2023 SCC OnLine Del 4156, decided on 18-07-2023]
Advocates who appeared in this case :
For the Plaintiff- Advocates Diva Arora Menon, Devyani Nath and Archita Nigam
For the Defendant- Advocate Sridharan Ramkumar
*Judgement authored by — Justice C. Hari Shankar
