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IN THE HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya, Ishan Chandra Das, JJ.
Rajiv Singh – Appellant
Versus
Manoj Kanti Sensarma & Ors. – Respondents
F.M.A.T. 1049 of 2016 (CAN 9936 of 2016)
Decided on : 04-10-2016
TRADEMARK - INJUNCTION - TRADE MARKS ACT, 1999, SECTION 27(1)(b) - Court refused to grant ad-interim injunction against the defendants from using the plaintiff's trade name "BALLE BALLE DHABA" as the plaintiff was not the exclusive user of the trade name and had not restricted his claim for injunction against the defendant nos. 1 and 2 alone.
Fact of the Case:
Plaintiff and defendants 4 and 5 were partners in an unregistered partnership firm, Blue Fork Hospitality, which ran a restaurant business under the trade name "BALLE BALLE DHABA." Defendants 1 and 2 were partners in Rock Sugar Hospitality Services, which allegedly operated a restaurant business in the same premises as Blue Fork without any authority or consent.
Finding of the Court:
The court found that the plaintiff was not the exclusive user of the trade name "BALLE BALLE DHABA" and had not restricted his claim for injunction against the defendant nos. 1 and 2 alone. The court also noted that the plaintiff himself claimed that the defendant nos. 1 and 2 were close relation of defendant nos. 4 and 5 and the business of the defendant nos. 1 and 2 is controlled by the defendant nos. 4 and 5.
Issues: Whether the plaintiff was entitled to an ad-interim injunction restraining the defendants from using the plaintiff's trade name "BALLE BALLE DHABA"; Whether the plaintiff was the exclusive user of the trade name "BALLE BALLE DHABA"; Whether the plaintiff had restricted his claim for injunction against the defendant nos. 1 and 2 alone.
Ratio Decidendi: The court held that the plaintiff was not entitled to an ad-interim injunction as he was not the exclusive user of the trade name "BALLE BALLE DHABA" and had not restricted his claim for injunction against the defendant nos. 1 and 2 alone. The court further held that the arrangement under which the plaintiff nos. 1, 2, 4 and 5 were carrying on the said business by utilising the said trade name of the plaintiff’s partnership firm is required to be considered after exchange of affidavits between the parties.
Final Decision: The court declined to interfere with the impugned order and dismissed the appeal.
1. By the impugned order, the plaintiff’s prayer for ad interim injunction was rejected by the learned Trial Judge primarily on the ground for want of urgency. The learned Trial Judge thus, refused to pass ad interim order of injunction and directed the plaintiff to issue notice upon the defendants calling upon them to show cause as to why the plaintiff’s prayer for temporary injunction will not be granted.
2. Let us now consider the legality of the impugned order in the facts of the present case.
3. Since we are considering the legality of an order by which the plaintiff’s prayer for ad interim injunction was refused by the learned Trial Court, we have to assess the correctness of the impugned order with reference to the pleadings of the plaintiff made out in the plaint as well as in the injunction application and nothing else. For ascertaining the claim made out by the plaintiff in the suit, we have read the plaint as well as the injunction application and the annexures thereto.
4. On perusal of the pleadings of the plaintiff, we find that admittedly the plaintiff and the defendant nos. 4 and 5 are the partners of an unregistered partnership firm. The name of the said partnership firm is Blue Fork Hospitality. The said partnership firm is carrying on its restaurant business in a rented accommodation under the trade name of “BALLE BALLE DHABA”. The defendant nos. 1 and 2 also carrying on business in partnership in the name of Rock Sugar Hospitality Services. The plaintiff alleges that the Rock Sugar Hospitality Services which is formed by the defendant nos. 1 and 2 is in fact, controlled by or is an alter ego of the defendant nos. 4 and 5 as the defendant no.1 is the father-in-law of the defendant no. 4 and the defendant nos. 2 and 5 are brothers. He further alleges that the defendants are acting in collusion and conspiracy with each other in abuse of process of the court.
5. He further alleges that the Rock Sugar Hospitality Services does not have any trade licence to operate or run any restaurant business and in fact, the defendant nos. 1 and 2 being the partner of Rock Sugar Hospitality Services are running the restaurant business in the tenancy of the plaintiff’s partnership firm by using the infrastructure of Blue Fork without any authority or consent of Blue Fork.
6. Since the plaintiff’s partnership business is the prior user of the trade name “BALLE BALLE DHABA”, the defendants, according to the plaintiff are not entitled to carry on any business by using and/or utilising the trade name of the plaintiff’s partnership firm viz. “BALLE BALLE DHABA”.
7. Thus, on the strength of prior user of the trade name of “BALLE BALLE DHABA”, the plaintiff filed the said suit for passing off seeking injunction not only against the defendant nos. 1 and 2 who are the partners of Rock Sugar Hospitality Services but also against his own partners viz. the defendant nos. 4 and 5 from using the goodwill and/or name and/or mark and/or sign “BALLE BALLE DHABA” or under any other mark or name which is identical or deceptively similar to the plaintiff trade name and/or trademark “BALLE BALLE DHABA” in any manner whatsoever.
8. Several other reliefs by way of perpetual injunction in different forms were prayed for by the plaintiff against all the defendants so that the defendants cannot carry on similar or any other business under the name and style of “BALLE BALLE DHABA” or under any other mark or trade name which is identical or deceptively similar to the plaintiff trade name and/or trademark “BALLE BALLE DHABA” in any manner whatsoever in the premises described in the schedule.
9. After filing the said suit, the plaintiff filed an application for temporary injunction seeking identical relief by way of interim injunction so that the defendants cannot carry on business of restaurant in the same premises or in any other premises by using the trade name of the plaintiff’s firm, viz. “BALLE BALLE DHABA” during the pendency of t
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