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18 November 2019

Injunction against MAKEMYTRAVEL - Correspondence with lowest rung executive is not acquiescence

In a dispute involving MAKEMYTRIP and MAKEMYTRAVEL, the Delhi High Court has made absolute the interim injunction granted earlier by it against use of the trade mark/trade name 'Make My Travel' (word per se), MMT (letter mark) and the tag line 'Dreams Unlimited', the MakeMyTravel Logo and their website.

The Court observed that the defendant’s marks were prima facie phonetically, visually, structurally and conceptually identical/deceptively similar to the plaintiffs MakeMyTrip Marks, and that the defendants had not offered any plausible explanation for adoption of the infringing marks.

It noted that while 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.

Similarly, the Defendant‟s tag line DREAMS UNLIMITED is deceptively similar to the plaintiff‟s taglines HOTELS UNLIMITED and MEMORIES UNLIMITED. While the second word in the tag lines is identical, the first words DREAMS, MEMORIES and HOTELS, when considered in the context of travel and holiday related services, may be used in the same context or idea.

The High Court in the case of Make My Trip (P) Ltd. v. Make My Travel (P) Ltd. also observed that merely on the basis of the correspondence that defendant had with the booking customer care executive of the plaintiff and the franchisee of the plaintiff, and not with the management or the key managerial personnel, it cannot be prima facie accepted that plaintiff has acquiesced use of the infringing mark by the defendant.

It was held that correspondences with personnel who did not have knowledge of the intellectual property rights of the Plaintiff, cannot be considered as positive acts of encouragement towards the Defendant to do business under infringing/impugned Marks.

Defence of suppression of facts by the plaintiff was also rejected.