(per V.V.S.Rao, J.)

1. The VARIETY dispute in this miscellaneous appeal is between two half blood brothers fighting with full blood for the name ‘VARIETY’ to use it as a prefix to the dry fruits business, they do separately. The appellant was unsuccessful in getting a prohibitory order against the respondent and hence this appeal.

Background

2. The factual background to the extent necessary may be noticed by referring to the parties as they appear before us and while referring to various documents as marked by the Court below. Jamnadas Devji started M/s.VARIETY Dry Fruit Stores in Secunderabad in 1955 in a rented premises No.2-4-1, M.G.Road, Secunderabad. He had four sons and four daughters. The respondent (defendant) is one of them. After the death of first wife, Jamnadas married Smt Jaya Ben. The appellant (plaintiff) is son through second wife. Under Ex.A.9, dated 03.02.1968, elder brother of respondent joined as a partnership business, which was reconstituted as ‘VARIETY Dry Fruit Stores’. About ten years thereafter under Ex.A.11, dated 16.04.1977, the respondent also joined as a partner in the business. A decade thereafter elder brother retired from the firm. The respondent and Jamnadas were reconstituted into a new firm. Under Ex.A.14, dated 02.04.1990, the firm was dissolved. The respondent relinquished his rights in the partnership including trade name, trade quota, trade licences and other benefits enjoyed by the firm as on 31.03.1990. Jamnadas continued the business. He executed Will, Ex.A.15, dated 28.05.1996 bequeathing 50% to his second wife and 50% in Goodwill and tenancy rights to appellant. The Will was modified by Codicil, Ex.A.16, dated 20.06.1996 giving Jaya Ben’s share of 50% in the business also to the appellant after her death. Jamnadas died on 17.12.1998. Under Ex.A.17, dated 13.01.1999, Jaya Ben relinquished her 50% share in ‘VARIETY Dry Fruit Stores’ in favour of the appellant.

3. After relinquishing his right in the business under Ex.A.14, the respondent statedly in 1990 commenced and established the business in the name and style ‘M/s.Variety Agencies’ dealing in the dry fruits and canned foods. In March, 2008, appellant obtained registration of trade mark ‘VARIETY Dry Fruit Stores’ under Exs.A.1 and A.2 dated 08.03.2008 and 27.03.2008 respectively in respect of various food and non-food varieties included in clauses 29 and 30 under the Trade Marks Act, 1999. As noticed supra, the respondent carried business by name ‘Variety Agencies’, which according to the appellant being strikingly similar to the registered trade mark of the appellant led to immense confusion amongst the purchasing public. It is alleged that respondent obtained purchase orders from M/s.Bharati Airtel Limited and M/s.Kiran Kotak and Company, Mumbai taking advantage of confusion created and similarity in two trade names. The appellant administered warnings to the respondent, in vain. When the appellant initiated necessary action to approach the Court, the respondent requested for not doing so and entered into a Deed of Settlement on 19.10.2008 (not marked) accepting the ownership of the appellant to the trade mark ‘VARIETY Dry Fruit Stores’. He agreed to relinquish the right on the trade name/trade mark ‘VARIETY’. The respondent also agreed to withdraw the trade name ‘Variety Agencies’.

Court Dispute

4. In spite of executing settlement deed, the respondent carried on business. The appellant filed the suit for infringement and passing off and also sought ad interim injunction in I.A.No.963 of 2009 restraining the respondent from using the trade mark ‘Variety Agencies’ or in any other form or any other trade mark deceptively similar to that of the appellant’s trade mark ‘VARIETY Dry Fruit Stores’. The respondent opposed ad interim injunction. He denied the allegations of infringement and passing off. He denied any exclusive right to appellant to use the word ‘VARIETY’ to the exclusion of the respondent as the latter is eng