The main legal point established in the judgment is the requirement for the plaintiff to establish a prima facie case for the grant of an injunction in trade mark suits, and the importance of distinguishing domain names in relation to the sale of similar products.

JUDGMENT :

(N.V. Anjaria, J.)

1. The challenge in this Appeal from Order is directed against order dated 27.1.2022 passed by learned Special Judge, Commercial Court - 8th Additional District Judge, Ahmedabad (Rural) at Mirzapur, below Exh.5 in Trade Mark Suit No.8 of 2021, whereby the commercial court below allowed interim injunction application of the plaintiff- respondent herein.

2. The commercial court below, restrained the defendants from providing and offering for sale the product sizzlers by using similar trade dress, secrets, recipe, etc. thereby from committing the act of passing off the product and services of the plaintiff.

3. The respondent- original plaintiff instituted trade mark suit against the appellants for permanent injunction to restrain the defendants their agents and distributors from misusing, acquiring and/or offering for sale the product sizzlers to others as well as to customers by using trade dress, data and trade secrets, that is recipe and from advertising, marketing, exposing his business with identical and deceptively similar trade dress and trading style as of the plaintiff’s trade dress, style, secrets, recipe and customer data and from committing the act of passing off. The relief was prayed for accounts of profit and for damages to the goodwill of the plaintiff because of using identical and deceptively similar trade dress, style, secrets etc.

3.1 The plaintiff also filed interim injunction application in the said suit praying for ad-interim injunction to restrain the defendants from their agents and servants from misusing, acquiring and offering for sale sizzlers products, using similar data and trade secrets, thereby to restrain the defendant from committing the act of passing off.

3.2 In the plaint as well as in the injunction application, it was the case pleaded by the plaintiff that the plaintiff was engaged in the business of running a restaurant in the name ‘Yanki’ since 2.7.2012. Initially the business was in personal and later came to be converted into ‘Yanki Sizzlers Private Limited’ along with rights, goodwill, trade dress etc. The business was run at the address of Thaltej, Ahmedabad.

3.2.1 The trademark ‘Yanki Sizzlers’ came to be registered with No.2417168 dated 23.10.2015 showing the user since 8.5.2012 under Class-43 which includes restaurants. As stated above, the sole proprietorship was converted into a company on 31.8.2017. It was further averred that the plaintiff started another branch also at H.L.Commerce College, Navrangpura, Ahmedabad. For that purpose, it was stated, the plaintiff applied for loan at Rs.10 crores. Towards repayment of the loan, the plaintiff gave undertaking and for assurance purposes, he further gave leave and licence agreement of the owners of the property. The owners of the property were defendant Nos.2 and 3, the appellants herein.

3.2.2 It may be stated at this stage that appellant No.2 and 3- owners of the commercial premises had been running a restaurant in the name and style of Kitchen Kraft from 2009 and 2012. Since that time, they also had been serving the food item known as ‘sizzlers’. The plaintiff started business in the restaurant with name Yanki on 2.7.2012.

3.2.3 While defendant Nos.2 and 3 were the owners of the restaurant premises, defendant Nos.4 and 5 stood as the employees of the plaintiff since the start of restaurant business by the plaintiff in the year 2012. They were named Manager and Captain respectively. When the second branch was started at H.L.Commerce College, the second person who was the captain, also came to be designated as Manager. It was the case of the plaintiff that both were handling secret recipes, secret trade dress, menu, price, customer data etc. It was the case that defendant Nos.4 and 5 had a fiduciary relationship with the plaintiff. Leave and licence agreement came to be executed between defendant Nos.2 and 3 and plaintiff on 28.8.2017 for a period of four years, from 1.7.2017 to 30.6.2021. It inter alia s