TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 2103
X X X X Extracts X X X X
X X X X Extracts X X X X
...., despite service failed to file written statement within the prescribed time and vide order dated 25th February, 2019 the written statement filed by the defendant beyond prescribed time was taken off the record. The plaintiff has filed IA No. 3762/2019 under Order VIII Rule 10 CPC for pronouncement of judgment forthwith. 3. The senior counsel for the plaintiff and the senior counsel for the defendant have been heard. 4. The plaintiff has instituted this suit pleading, that (i) the plaintiff is a private equity / venture capital and real estate investment firm focused on supporting the growth aspirations of entrepreneurs, corporations and asset owners across India and Southeast Asia and commenced business in the year 2008 under the name and style of "New Age Investment Advisors Ltd." which was changed to "New Edge Investment Advisors Ltd." in the same year; in the year 2009, the name of the plaintiff was changed to "Everstone Investment Advisors Ltd." and again changed to "Everstone Investment Advisors Pvt. Ltd." in the same year; in the year 2011, the name of the plaintiff again changed to the present name of "Everstone Capital Advisors Pvt. Ltd."; (ii) "EVERSTONE" was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the defendant was registered on 24th January, 2018; however the Ministry of Corporate Affairs vide its letter dated 16th February, 2018 informed the defendant of protest of the plaintiff; (xiv) on making further enquiries, it was learnt that the defendant's proposed business was in the filed of mining and quarrying; (xv) the defendant was earlier an unregistered partnership concern under the name and style of "Everstone Ventures", since 19th December, 2017 and which on 3rd January, 2018 had applied for conversion to a limited liability partnership; (xvi) the only reason for the defendant to adopt such a name for itself is to mislead the general public into thinking the business venture of the defendant as connected with and / or affiliated to the plaintiff when in fact no such trade connection exists; and, (xvii) the name of the defendant is likely to cause confusion and mislead general public into believing that the plaintiff has started yet another venture in collaboration with the promoters of the defendant. 5. Since there is no written statement of the defendant but the defendant, in law is entitled to show that the plaintiff on its own case is not entitled to the decree cla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the defendant applied for registration and the defendant was registered notwithstanding the objection by the plaintiff; (v) though the plaintiff represented that its objection had not been considered but the Registrar of Companies, being the Authority under which an LLP is registered under Section 15 of the Limited Liability Partnership Act, 2008 has not acted thereon owing to the matter being sub judice in this Court; (vi) that Class 35, in which the mark of the plaintiff is registered, includes Business Management, Business Administration and Business Management, which are very wide terms and cannot be restricted to any one class of businesses; (vii) similarly, Class 36 in which also the mark of the plaintiff is registered, includes monetary affairs and which can also be pertaining to any sector of the industry including mining; (viii) that it is thus not open to the defendant to contend that the plaintiff does not have registration of its mark in the class in which the business of the defendant falls; (ix) that the name of the defendant i.e. Everstone Ventures LLP does not indicate that the defendant is confined to the business of mining and suggests that the defendant partici....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration, of any other person under the Trade Marks Act, 1999 (47 of 1999)". It was also the contention of the senior counsel for the defendant that the power or jurisdiction to decide whether the name of an LLP of which registration is sought is identical or too nearly resembles to that of any other company is of the Registrar of Companies and not of this Court. 10. The senior counsel for the plaintiff at the close of hearing also handed over a copy of Bloomberg Finance LP Vs. Prafull Saklecha 2013 (56) PTC 243 (Del) holding that adoption by the defendants in that case of the mark of the plaintiff as part of their corporate name was likely to deceive the public into thinking that services and products offered by the defendant were that of the plaintiff or as originated from the plaintiff. 11. I have considered the rival contentions. It is borne out from undisputed documents on record/handed over during the course of hearing, that (i) Mr. Prateek Mittal on 20th December, 2017 applied to the Registrar of Companies, NCT of Delhi & Haryana, for registration of a limited liability partnership in the name of Everstone Ventures LLP; (ii) the plaintiff, on 27th December, 2017 repre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....originally or by a change of name, under a name which is referred to in Section 15 (2) or is identical with or too nearly resembles the name of any other limited liability partnership or body corporate or other name as to be likely to be mistaken for it, to direct such LLP to change its name and mandates the LLP to comply with the said direction within three months after the date of the direction and any LLP which fails to comply with a direction in this regard is made punishable with fine as provided therein. Section 18 of the LLP Act provides for an application for a direction against an LLP on a ground under Section 17, to be made within 24 months from the date of registration of the LLP under the impugned name and Section 19 empowers an LLP to, on its own apply for change of name by filing with the Registrar a notice of such change. 13. Section 15(2)(b) supra, while laying down the test for registration of a name of the LLP, besides the test of "identity or resemblance with a trade mark", also lays down the test of "identity with and/or resemblance with the name of any other body corporate", and while doing so does not lay down any further requirement of such body corporate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....STONE" is the same but also because the subsequent words "Capital Advisors Private Limited" in the name of the plaintiff and "Ventures LLP" in the name of the defendant also show resemblance of business of the two. Further, Rule 8 of the Companies (Incorporation) Rules, 2014 provides that in determining whether a name is identical with another, differences on account of words like "Private", "Limited", "LLP" etc. shall be disregarded. Though the defendant claims to be involved in mining activities but there is nothing to show the objects which the defendant is entitled to carry on as per its incorporation document. Though such a document was asked from the senior counsel for the defendant and which per Section 11(2)(c) of the LLP Act is required to have and which would have disclosed the proposed business of the defendant, but the senior counsel for the defendant stated that neither was he carrying the said document nor has perused the same. Generally, in the Memorandum of Association of Companies, also lodged with the Registrar of Companies, it is a practice to include all kinds of businesses so as not to be a restriction on a new business, materially different from what was initi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncorporation to the defendant but the Registrar of Companies granted incorporation without dealing with the said objection. When the plaintiff pursued by applying under Section 18 of the LLP Act, the Registrar of Companies is found to have abdicated his jurisdiction by merely observing that the matter was sub judice in this Court. In these circumstances, I am of the view that the Courts are required to put an end to litigation and disputes rather than encouraging the same. Reference in this regard can be made to Mex Switchgears Pvt. Ltd. Vs. Max Switchgears Pvt. Ltd. 2014 SCC OnLine Del 854. Once it is found that the registration in the name of the defendant violates Section 15 of the LLP Act and the Registrar of Companies has failed to deal with the representation of the plaintiff in this respect, the Court would not still direct the Registrar of Companies to decide and which would only lead to first round of litigation before the Registrar of Companies and thereafter availing of remedies thereagainst by the aggrieved party. Thus, in the facts and circumstances of the case I am of the view that this Court having found the registration in the name of the defendant to be violative o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....trade marks. It thus cannot be said that the registration of the marks of the plaintiff is in a class in which the services provided by the plaintiff do not fall. This, coupled with the fact that business in the said Class can be in any sector of the industry, defeats the contention of the senior counsel for the defendant of the plaintiff being not entitled to relief on the ground of infringement for the reason of the business/services of the defendant falling in a different Class than in which the mark of the plaintiff is registered. 25. Once it is so held, the contention of the senior counsel for the defendant relying on Raymond Ltd. and Mankind Pharma Ltd. supra also does not survive. I may however mention that in Raymond Ltd. no case for infringement was found since the mark of the plaintiff was registered in respect of textile goods and the trade mark of the defendant carrying on business of manufacturing and selling pharmaceutical products, falling in Class 5 was in relation to an entirely different Class. This is however not the position here. 26. That leaves only the argument of the defendant, of use by the defendant of the mark of the plaintiff as a trade name not am....