( 1 ) THIS Notice of Motion is taken out by the plaintiffs. The Plaintiffs have filed the present suit for infringement on the basis of their registered trade-mark, of which, according to the plaintiffs, word "nandu's" is an essential feature. The said mark "nandu's" is registered in respect of processed and frozen meat products and the said registration is valid and subsisting.

( 2 ) THE Plaintiffs' contention is that the Defendants are using impugned mark "nando's" in respect of similar goods and/or similar services as that of the plaintiffs. The Plaintiffs in the suit pray for a permanent injunction restraining the Defendants from in any manner using in relation to any eatable goods or restaurant or hotelling services or processed and frozen chicken and meat products the impugned trade-mark "nando's" or any other deceptively similar trade-mark so as to infringe the Plaintiffs' registered trade-mark "nandu". A perpetual injunction on the same terms in relation to passing off is also claimed. By this notice of motion temporary injunction in the similar terms is sought.

( 3 ) THE Plaintiffs' Suit is based on the following allegations:

(a) Infringement of the Plaintiffs trade mark, consisting of Nandu's written in a stylized manner and the device of a cockerel, both enclosed in a hat shaped outline. The registration is in Part B and in respect of 'processed or Frozen Meat products' falling in Class 29 of Schedule IV to the Trade Marks rules 2002 ("the first trade mark" ). The first trade mark was registered on 4th July 1989;

(b) A second trade mark was subsequently adopted by the Plaintiff in 2005 consisting of the word Nandu's enclosed within an oval shaped structure in white colour with read outline and a gift tag structure occupying the centre expression 'heat n Eat' depicted in black colour below the oval structure.

(c) It is alleged that both the first trade mark and the second trade mark have acquired distinctiveness in India and are associated by traders and members of the public exclusively with the Plaintiff. It is alleged that the Defendants mark 'nando's' is almost identical with and/or deceptively similar to the plaintiffs registered trade mark (. e. the first trade mark ). That by using the mark 'nando's' the defendants are passing off the Defendants goods and/or services as the goods and/or services of the plaintiff or that they are in some way connected with the Plaintiff.

( 4 ) THE Plaintiff alleges that:

(i) it carried on poultry business; and (ii) in course of time, started manufacturing and marketing processed and frozen chicken and meat products such as chicken kebabs, chicken nuggets, fried chicken, boneless chicken, chicken legs and other varieties of chicken products as well as meat pies , meat tenderizers; (iii) it adopted the first trade mark In respect of the said business. (iv) it has been extensively widening its product line and services by introduction of other food related products namely curries, biryanis, including vegetarian products in ready to eat form. (v) The Plaintiffs' products came to be sold at food service outlets such as fast food counters, highway eateries and take away counters.

( 5 ) THE 1st Defendant claims to be a major international chain running fast food outlets and the restaurant business, it serves Afro Portuguese cuisine (vegetarian and non-vegetarian and using the peri-peri chilly) and sells sauces under the trade mark Nando's. The 1st Defendant has stated to this Hon'ble Court that in future in India it will not sell its sauces other than at restaurants.

( 6 ) ADMITTEDLY,

(i) the Plaintiffs have not been and are not engaged in the business of restaurants, cafes, snack bars and/or other heat and eat outlets for sale of food items, beverages and food related products at all, much less under the trade mark 'nandu'. The Plaint merely states that the plaintiffs "plan to open" such restaurants etc. (ii) the second trade mark is not registered and was adopted by the Plaintiff only in

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