The court emphasized the importance of establishing deceptive similarity and a prima facie case of infringement in trademark disputes.

INDERMEET KAUR, J.

I.A. No.3282/2016 (under Order XXXIX Rules 1 & 2 of the Code), I.A. No.4272/2016 (under Order XXXIX Rule 4 of the Code) & I.A. No.4600/2016 (under Order XXXIX Rule 2-A of the Code) in CS(COMM) 173/2016

1. Plaintiff No. 1 is a company by the name of “Mehar Wing Services Private” Limited duly incorporated under the Indian Companies Act, 1956. Its principal place of business is at Wazir Pura Road, Opposite Sanjay Talkies, Agra. Plaintiff No. 2 is a partnership firm and carrying on trade and business under a mutual understanding with plaintiff No.1. The main object of plaintiff No.1 was hospitality and dining; it has an exclusive fine dining restaurant in Agra with the trade name “PINCH OF SPICE”. The company started its business in the year 2007. After the huge success of this restaurant, three other outlets have been opened. The plaintiff’s trademark “PINCH OF SPICE” is with respect to an array of goods and services namely restaurant, bar, providing food and drink, self-service restaurant, etc. It is a coined trade mark/trade name of the plaintiff and is highly distinctive in itself. The plaintiff has been using this trade mark/name in this distinctive get up, make up and in an artistic manner. It has a developed a well known reputation.

2. The plaintiff had applied for registration of the said trade mark “PINCH OF SPICE” in class 43. On the date of filing of this suit, this application was pending. The trade mark “PINCH OF SPICE” came to be registered in favour of plaintiff No.1 company on 29.03.2017 in class 43 during the pendency of the suit and this fact by way of an amended plaint has been taken on record on 10.04.2017. In para 15 of the plaint, the sale turnover of the plaintiff company which includes year-wise sale figures of not only plaintiff No.1 but also of plaintiff No. 2 as also of another company by the name of “Silver Spoon Food and Beverages” is on record. The documents relating to “Silver Spoon Food and Beverages” were initially not on record. On query, learned counsel for the plaintiff has brought these documents on record which substantiates that “Silver Spoon Food and Beverages” is a partnership firm in which one Manpreet Singh is a partner. Manpreet Singh is also a partner in plaintiff No. 2; he is also the director of plaintiff No. 1 having a 34% shareholding. The contention of the plaintiff is that the services and goods of the plaintiff have acquired status of a high quality product which has been created by the plaintiff himself; he is advertising the said trade name and trademark and his web presence has also been felt which is available online through his website www.pinchofspice.in.

3. The defendant is engaged in the same nature of business. He is also carrying on the business of food and drinks. It started using the trademark “PINCH OF SALT” in the year 2015 which is deceptively similar to the registered trademark of the plaintiff not only visually, structurally but the basic idea and essential features are also the same. The defendant has substantially copied the well known trademark of the plaintiff which thus amounts to infringement of the intellectual property rights of the plaintiff. The dishonesty of the defendant is writ large as by merely replacing the word “SPICE” with “SALT” would make no difference to the overall similarity of the trademark of the plaintiff which largely remains the same. The defendant has infringed upon the registered mark of the plaintiff.

4. Inquiries have revealed that the defendant has applied for registration of the impugned trademark on 25.06.2015 falsely claiming user since 29.04.2015; a cease and desist notice dated 29.10.2015 was sent to the defendant; the defendant is till date not registered. The defendant is infringing upon the goodwill and reputation of the plaintiff which he has been built over the years. Cause of action for the present suit arose in the last week of October, 2015 when the plaintiff learnt about the impugned adoption