BADAR DURREZ AHMED, J

1. This appeal is from the order dated 01.07.2009 passed by a learned Single Judge of this court in IA No.7040/2008, which was an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC‘) in a civil suit [CS(OS) 1122/2008]. By virtue of the impugned order, the appellant (defendant) has been restrained, till the disposal of the suit, from infringing‘ the respondent‘s (plaintiff‘s) registered trademark per se or in conjunction with any logo/mark/letters, or otherwise trading under the mark or any other deceptively similar mark thereto or colourable imitation thereof, whether by using the expression by itself or as part of any other mark/name in respect of goods covered by the registration obtained by the respondent. The appellant has also been restrained from, in any manner, using the mark per se or in conjunction with any other logo/mark/letters or any other mark deceptively similar thereto, so as to pass-off or enable or assist others to pass-off their business and products as those of the respondent.

2. The respondent claims to have the following registered trademarks:

Trademark Trademark No. Class Description of Goods/ Services Registration Date

1345481 25 Readymade garments, T-Shirts included in class 25 02.06.2007

(device of exclamation mark) 1345478 42 Restaurant included in class 42 30.05.2007

China (Label) 1194649 30 Coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes, flour and preparations made from cereals bread biscuits, cakes, pastry and confectionery, ice, honey, treacle, yeast, baking powder, salt, mustard, pepper, vinegar, sauces, spices, ice. China (Label) 1194647 32 Beer, ale and port, mineral and aerated waters and other non-alcoholic drinks, syrups and preparations for making beverages.

29 Meat, fish, poultry extracts, preserved dried and cooked fruits and vegetables, jellies, egg, milk and dairy products, edible oils and fats, preserve, pickles. 24.08.2005

3. According to the respondent, the marks and China have become distinctive of the respondent and the word has acquired a secondary meaning. Consequently, the respondent claims exclusive right to use the marks and China. The respondent is primarily in the business of establishing and running Chinese food restaurants. The first China restaurant is said to have been setup by the respondent in May, 2003 in a Mall in Gurgaon. The respondent now claims to have a chain of about 40 such restaurants operating under the mark China, spread over 15 cities across India. Apart from these restaurants, it is alleged by the respondent that there are a number of kiosks and take-away points where the repondent‘s products are sold under the said trademark. According to the respondent, besides being independently registered, the trademark " also forms an essential feature of the trade mark, trade dress and product descriptor of the products and services offered as " China". The trademark "" travels with the respondent in all its advertisements and expanded forms of business viz. " Dimsum", " On the Go" etc. It is also alleged that in the year 2005-2006, the respondent innovated its product line to offer " on the Go", which was essentially chowmein served in take-away boxes. Allegedly, the idea is a big hit with the consumers as they are able to have quality Chinese food (particularly chowmein i.e., ready to eat noodles) at reasonable prices. Recently this product offering has been renamed as "Box".

4. The Respondent claims to have coined and adopted the expression " China" in the year 2002 in order to distinguish its business, trade identity and products/services from those of others. It is contended by the respondent that today " China" has become a brand name associated with quality "Chinese Food at Chinese Prices" and that the target market for the Respondent has been the market segment which comprises primarily of the uth, for reas