The main legal point established in the judgment is the significance of prior user, reputation, and prevention of confusion in passing off cases, emphasizing the need to protect goodwill and prevent deception in the market.

P.D. Rajan, J.

1. The appellants who are the plaintiffs in O.S. No.7 of 2016 of the District Judge, Manjeri filed the above suit for permanent injunction restraining the defendants from using the brand name 'UTC' in their rice business which is similar to that of the plaintiffs. There was also prayer for interim injunction (I.A. No.1563 of 2016) restraining the defendant respondents from selling, marketing, stocking or distributing rice using the brand name 'UTC' or 'United Trading Company' in their business which was refused by the learned trial Judge, feeling aggrieved by that order plaintiffs preferred this appeal.

2. According to the plaintiffs, the first plaintiff is a partnership firm namely 'United Trading Company' engaged in packing and selling of rice under the brand name 'UTC' since 1987 and the plaintiffs 2 to 5 are the partners of first plaintiff. The plaintiffs have acquired reputation and goodwill for conducting the business of rice in the above brand name. The firm was founded by one Aisha Beevi, the mother of plaintiffs 2 to 5, under the care of her husband P.Abu Haji who was running various business concerns under the trade name Thayyil Traders. The plaintiffs in this case were conducting the business without any interruption and they rendered a quality service which acquired a good reputation, public confidence and goodwill for their business for several years. Respondents 1 and 2 are the business enterprises based at Nagpur, marketing rice to Kerala. The third defendant is a retired partner from the plaintiff's firm who accepted all retirement benefits from the firm and relinquished all his rights. Now, he, with the association of other defendants violated the legitimate right in the trade mark and used the trade name 'UTC' by fraudulent means. Since, the plaintiffs are the prior adopters of the trade name UTC, the defendants have no legal right to adopt and use an identical name for an identical business, their act is prima facie fraudulent, dishonest and used with intend to take advantage of the goodwill and reputation of the plaintiffs firm.

3. In the lower court, the respondents 1, 2 and 4 have filed cross objection and contended that the brand name UTC and the trade name United Trading Company are not owned by the petitioners since the trade name 'United Trading Company' is a common business name. Since several business entities and firms in India are using the said name for the trade activities, it is a 'Communis Juris Firms', therefore, the petitioners alone cannot claim trademark right over such names and derivatives and it cannot be protected under the law of trademark or passing off. The first defendant is a trader of rice at Nagpur and Maharashtra under the proprietary concern of Mr.Piyush Manoharlal Sachani who purchase rice with trademark UTC from Manoharlal Jeevandas Sachani. This Manoharlal Jeevandas Sachani is a miller using the trademark for processing rice at his mill since 1979 and he is distributing rice in Maharashtra in the trade name. He is conducting rice business in the name and style Bharti Industries, Nagpur since 1993 which is a partnership firm. Therefore, the logo of UTC is created by Manoharlal Jeevandas Sachani since 2005 and the firm is manufacturing, processing and distributing rice under the above brand name. Since they are not made parties in this case, the suit is bad for non-jointer of necessary parties. Hence, the petitioners have not prima facie proved any passing off and the application ought to have been dismissed forthwith.

4. The 3rd respondent, in his objection, contended that the plaintiff's firm was not registered before the Registrar of Firms as claimed in the application and the above brand name was not used by the appellants from 1987 onwards. A person namely Abu Haji applied for registration of trade mark on 14.02.2014 for getting registration of trade mark for 'Biriyani Rice'. Therefore the petitioners approached the court with unclean hands and rais