Descriptive terms in trade, such as 'Sanjha Chulha', cannot be exclusively owned despite trademark registration; common usage undermines claims of infringement.

JUDGMENT

Vibhu Bakhru, J. The appellant has filed the present appeal impugning an order dated 04.08.2022 (hereafter `the impugned order') passed by the learned Commercial Court, whereby the appellant's application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereafter `the CPC') was dismissed and the respondents' application under Order XXXIX Rule 4 of the CPC was allowed.

2. Respondent no. 1, a partnership firm constituted by respondent nos. 2 and 3 as its partners, is engaged in the business of running a restaurant under the name SANJHA CHULHA in Faridabad, Haryana. The appellant, a registered partnership firm with Mr Nand Kishore and Mr Suresh Kumar as its constituent partners, is also engaged in a similar business and operates a restaurant by the same name in New Delhi. The appellant had sought interim orders, inter alia, restraining the respondents from using the trademark and name "SANJHA CHULHA" or any other deceptively similar marks, claiming that use of the said mark infringes its trademarks and amounts to passing off. The said prayer for interim relief was rejected and this has led the appellant to file the present appeal.

FACTUAL CONTEXT

3. The appellant claims that it commenced its business in the year 1986-1987 and is engaged in the business of providing food and catering services from its restaurants/food outlets under the name and style of "SANJHA CHULHA". The appellant states that it opened its first outlet in Kailash Colony, New Delhi and thereafter, opened two additional outlets in the areas of Chitranjan Park, New Delhi and Defence Colony, New Delhi due to its growing reputation.

4. The appellant states that it applied for registration of device marks "" and "" under Class 29 by trademark application nos. 766554 and 1040537 respectively; device mark "" and "" under Class 16 by trademark application nos. 1006350 and 1040539 respectively; and, device mark "" under Class 30 by trademark application no. 1006351. These label marks were registered in its favour.

5. The appellant also applied for registration of the wordmark "SANJHA CHULHA" under Classes 29, 30 and 43 by trademark application nos. 5239415, 5239416, 5239417 respectively; and device mark "" and word mark "SANJHA CHULHA" under Class 43 by trademark application nos. 4581878 and 2110609 respectively. However, the applications in respect of the aforesaid marks were objected/opposed by the respondent nos. 1 to 3 (hereafter collectively referred to as `the respondent').

6. The appellant states that its packaging/trade dress have unique design, structure, combination of various colours and features, get up, make up etc and is an `artistic work' under Section 2(c) of the Copyright Act, 1957. The appellant also states that it has registered copyright in the artistic work of its label bearing Registration nos. A-60137/2001, A623555/2002 & A-139603/2021, as well.

7. The appellant states that in the month of October, 2017, it became aware that the respondent had also applied for registration of a similar trademark and thus, opposed the registration of the said mark before the Trademark Registry. The appellant claims that the respondent, acting in a mala fide manner with fraudulent and dishonest intentions and in order to retaliate against the action of the appellant in filing opposition against registration of its trademark, instituted opposition proceedings against various applications preferred b