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Andhra Pradesh High Court
Judges : ELIPE DHARMA RAO
Chennai Hotel Saravana Bhavan - Appellant
Versus
Hotel Saravana Bhavan - Respondent
Decided On : 03-30-05
Held : For claiming exclusive right over a trademark, one has to register the same under the provisions of the Trade Marks Act. In the instant case, evidently, neither the plaintiff nor the defendants have registered their trademark under the provisions of the act and the remedy for its infringement is a statutory remedy conferred on the registered proprietor of the said trademark for vindication of his exclusive right. The infringement of trademark can be noticed if the essential features of the trademark of the plaintiff have been adopted by the defendant. On the other hand, an action for passing off is an action for deceit i. e. , a passing off by a person of his own goods as those of another and this is a common law remedy and the defendants may escape the lability, if they show that the added matter is sufficient to distinguish his goods or characteristics viz. , trade-dress, get up or additions, from those of the plaintiff.
The name board of the appellants-defendants shows that it is chennai Hotel Saravana Bhavan inscribed in big and bold letters while the name of the hotel of the Respondent is Hotel Saravana bhavan inscribed in small letters, that the photo of Saravan (Lord Subramanya swamy) is found on the left side of the board and that his devotees photo i. e. , sri Kripananda Varrier, on the right side of the defendants name board. Further the description of appellants hotel is given as high Class Veg. Restaurant whereas, it is given as Vegetarian A/c. Restaurant as that of the respondent, the name board of the appellant is inscribed in both Tamil and english while it is in English and Telugu in respect of the respondent-plaintiff s hotel. Thus due to the additions, get up and trade- dress of the appellant s hotel, it is quite distinct from that of the respondent-plaintiffs hotel and in view of these dissimilarities, there is no scope of confusion in the mind of customers. The plaintiff has started the hotel business in the name and style of Zen Park and subsequently, the partnership firm started that business registering it in the year 2004 while the defendants-appellants have registered their firm and started its business earlier to the plaintiff. These aspects were lost sight by the court below. That apart, as contended by learned counsel for the defendants-appellants, the genuineness or otherwise of the documents relied on by the plaintiff has to be established during the course of trial.
( 1 ) AGGRIEVED of the order and decree dated 4-8-2004 made in I. A. No. 1015 of 2004 in o. S. No. 20 of 2004 by the learned v Additional District Judge, Tirupathi, allowing the petition filed under Order 39 rules 1 and 2 C. P. C. restraining the appellants herein - defendants in the suit, and their men from using the name of Hotel saravana Bhavan or Chennai Hotel saravana Bhavan or similar type name to their hotel business at Car Street, srikalahasti, till the disposal of the suit, the defendants preferred this Civil miscellaneous Appeal.
( 2 ) ORIGINALLY the suit was filed for declaration that the registration of defendant s firm in the name as Saravana bhavan or Chennai Saravana Bhavan or running hotel business in that name is null and void, inasmuch as it is identical and resembles the name of the plaintiff s firm and tends to cause confusion in the public and damaging the reputation of the plaintiff firm. The plaintiff also sought consequential relief of permanent injunction. It is the case of the plaintiff that they started hotel business at srikalahasti at D. No. 4/39 in the name and style of zen Park in the month of April, 1998 and subsequently changed its name as "hotel Saravana Bhavan" as per the proceedings R. C. No. Chittoor/01/1/2364/98-99, issued by Commercial Tax Officer, srikalahasti. Subsequently, they entered into partnership deed dated 1-1-2001, accordingly, it was registered with the registrar of Firms bearing No. 49/2004 on 15-6-2004 and also made a representation to the Registrar to get the trade mark registered under the Trade Marks Act, 1999 and the Government of India Trade Marks registry assigned No. 12899989. Thus since april, 1998, the plaintiff s firm is doing hotel business under the name and style of Hotel saravana Bhavan and had been paying taxes and ESI contributions promptly and regularly to the concerned Departments.
( 3 ) WHILE so, the defendant, on 27-9-2001 inaugurated their hotel business as Swarna residency and Swarna Restaurant Private limited, at D. No. 4/46 to 49, in Car Street, srikalahasti, which is just four buildings away from the plaintiff s firm, and in due course of time, having developed eye sore over the prosperity of the plaintiff s business, wanted to start its business in the name and style of hotel Saravana Bhavan and in furtherance of their desire, suppressing the fact of existence of the plaintiff s business, in the same name and style, at Srikalahasti, stealthily got the firm Registration Certificate as M/s. Hotel Saravana Bhavan on 17-9-2003. It is further submitted that the defendants-appellants wantonly opted the said trade name and to get defame to the plaintiff using the plaintiff s name of the trade name i. e. , Hotel Chennai Saravana Bhavan, which is similar to the plaintiff s trade name and thus infringed the Trade Mark with a motive to bring disrepute to the plaintiff firm. It is also averred that the appellants though got the registration certificate as Hotel saravana Bhavan at D. No. 4/46 to 49 stealthily, they are running the trade as chennai Hotel Saravana Bhavan and put up boards in the name of Chennai Hotel saravana Bhavan deceptively in the same name of the plaintiff to cause confusion and also proclaimed that they will not allow the plaintiff to run the business in its firm name.
( 4 ) THE defendants filed their counter denying the averments. It is stated that they have given the name of Chennai Hotel saravana Bhavan depending entirely on the huge reputation by Hotel Saravana Bhavan of Chennai and inspired to give the name, they have clearly shown in the outer name board of the hotel the figure of Kripananda varrier, who inspired the owners of saravana Bhavan, Madras to give the name of Saravana Bhavan to their hotel with his blessings to the owners of Saravana Bhavan hotel. It is stated that the word Saravana bhavan became generic and have lost all exclusivity or distinctiveness as a trade name and, therefore, the plaintiff canno
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