The central legal point established in the judgment is the application of the Trade Marks Act, 1999 in determining the infringement and protection of the trademark 'Nizam's' and the potential confusion and harm caused by the defendants' unauthorized adoption of a deceptively similar trade name.

S. Muralidhar, J.

This appeal is directed against an order dated 23rd January 2019 passed by the learned Single Judge declining to vacate the interim injunction passed on 31st August 2018 in IA No.11667 of 2018 in CS (Comm) 1095 of 2018 and CS (Comm) 48 of 2018. As a result the learned Single Judge dismissed IA No.12286 of 2018 filed by the present Appellants (Defendants in the suit) under Order XXXIX Rule 4 CPC for vacating the said interim injunction.

2. The background facts are set out in the order dated 31st August 2018 which reads as under:

"It is stated that the father of the plaintiffs, late Mr. Amir Chand initially adopted the trademark 'Nizam's, as Karta of the HUF and got the same registered under Classes 29, 30, 32, 33, 24, 42 and 43 of the Trade Marks Act, 1999. It is stated that upon the demise of late Mr. Amir Chand, the said trademarks devolved upon the plaintiffs by virtue of being male members of the HUF as well the last will and testament of the late Mr. Amir Chand dated 01st March, 2018. It is stated that the plaintiffs have applied for certificates for use in legal proceedings of the trademark 'Nizam's'. It is stated that by virtue of extensive and continuous use as well as the high quality taste of the plaintiffs' food items, the trademark 'Nizam's' is exclusively associated with the plaintiffs business and services.

It is stated that the plaintiffs own the website www .nizams.com and have listings on food portals such as Zomato, Swiggy, Trip Advisor, Dineout etc. It is stated that the plaintiffs also have a strong social media presence.

It is the case of the plaintiffs that the annual revenue generated by the plaintiffs in the financial year 2017-2018 was INR 7,83,17,646 and the expenditure incurred on advertising and promotion of their business and services for the same financial year was INR 30,17,500.

Learned counsel for the plaintiffs states that in 1998, on the basis of an oral understanding, the plaintiff no. 1 allowed the defendant nos. 1 to 4 to operate a franchise of 'Nizam's in Gurgaon. He states that in July, 2016, the plaintiffs terminated the franchise with the defendants due to various reasons including non-adherence to standards and misappropriation of funds and rights.

Learned counsel for the plaintiffs states that in December, 2016 the plaintiffs came across the defendant no.1's trademark application dated 19"" February, 2015for registration of the device mark 'New Nizam's Kababs and Biryani' under Class 43 of the Trade Marks Act, 1999 claiming use since 29"' July, 2014, when the defendant nos. 1 to 4 were operating the franchise of the plaintiffs. He states that subsequent investigations revealed that after termination of the franchise, the defendant nos. 1 to 4 started operations under the deceptively similar trade name 'New Nizam's Kababs and Biiyani', in August, 2016. A pictorial representation of the plaintiffs' and defendants' trademarks is reproduced herein below:-

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Learned counsel for the plaintiffs states that the plaintiffs' issued a cease and desist letter dated 12"' December, 2016 to the defendant nos. 1 to 4andvide reply dated 29"' December, 2016, the defendant nos. 1 to 4 responded refusing to comply with the plaintiffs' demands stating that their mark is different from the plaintiffs'. He states that since the plaintiff no. 1 suffered a severe illness, he could not follow up on the defendant nos. 1 to 4's activities, however on 13"' November, 2017, the defendant no.1's trademark application was declared abandoned on account of non-prosecution. He states that post recovery of his illness, upon gaining knowledge of the defendant nos. 1 to 4's attempt to revive their trademark application, operation of the website ww.newnizams.com, that they were listed on various online food portals such as Zomato, Swiggy, Food Panda etc. as well social media websites and expansion to more locations in Gurugram, the plaintiff no.1 issued afresh cease and desist letter dated 24th April,