JUDGMENT - S.J. VAZIFDAR, J.:---The plaintiffs have filed this suit to restrain the defendant from using the mark "PIZZA HUT" or any other mark similar thereto as part of its corporate name/trading style and from using, upon or in relation to any business relating to restaurants and food products the said mark or the 'PIZZA HUT" logo or any other mark/logo similar thereto and from infringing the plaintiffs statutory rights in the PIZZA HUT logo/PIZZA HUT mark which are either registered or pending registration. The plaintiffs have also claimed a perpetual order and injunction restraining the defendant from using the said mark and logo in any manner in relation to any business or food products sold/served by the defendant so as to pass off or enable others to pass off the said good/business as and for that of the plaintiffs. The plaintiffs have further prayed that the defendant be directed to change its corporate name/trading style so that the mark PIZZA HUT does not form a part thereof. Finally the plaintiffs have sought a decree for damages and in the alternative a decree for accounts.

The plaintiffs have taken out the above Notice of Motion for the usual interim reliefs in relation to an action for infringement and passing off.

2. Plaintiff No. 1, Pizza Hut International, L.L.C. and plaintiff No. 2, Pizza Hut Inc., are corporations incorporated under the laws of the United States of America. Plaintiffs No. 3 Tricon Restaurants (India) Pvt Ltd., is a Private Company limited by shares incorporated under the Companies Act, 1956. Plaintiff Nos. 1 and 3 are subsidiaries of Tricon Restaurants International.

Plaintiff No. 3 is authorised by the Government of India to set up, run and operate Pizza Hut and KFC Restaurants in India through self-owned and franchised outlets.

3. The defendant is a Private Company limited by shares incorporated under the Companies Act, 1956. The authorised share capital of the defendant is Rs. 5,00,000/-. However, the paid up capital of defendant is only Rs. 2,000/-. The main objects for which the defendant has been incorporated include carrying on the business of manufacturing, exporting, importing and dealing in all types of processed food including pizzas.

The defendant proposes to engage itself in the same field of activity as the plaintiffs. This is evident from its Memorandum of Association that lists the following as one of the objects for which the defendant was incorporated:-

"To carry on business of manufacturers, exporters, importers and deal in all types of processed food, pizza, canned food stuff, fruits, vegetables, spices, pickles, confectionery, sweet meat, jams, jelly and other food, agro products of every description whether for human, animal or poultry or piggery consumption."

4. The trade mark PIZZA HUT, written in its distinctive style/lettering with the word HUT below the word PIZZA and a hat above and covering the words, is registered under Registration No. 483960-B under Class 29 of Schedule IV which pertains to meat, fish, poultry and game not being live and vegetables all being preserved, dried or cooked, edible oils and edible fats. The registration is however subject to the condition/disclaimer that it shall give no right to the plaintiff to the exclusive use of the word "PIZZA". The registration is subsisting.

5. The plaintiffs had applied for registering the above trade mark in Class 30 relating to Pizzapies, preparations made from cereals for food for human consumption, bread and non-medicated confectionery. The application bearing No. 483959 has been accepted for advertisement in the Trade Marks Journal and after the suit was filed, the trade mark was registered.

6. By their applications dated 5-2-1996 the plaintiffs applied for registering the trade mark PIZZA HUT (words per se) in classes 29 and 30. The above applications are pending before the Registrar of Trade Marks.

7. The above applications were made by plaintiff No. 2. Consequent upon a world-

wide assignment of rights i

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