Point of Law: Interlocutory injunctions are issued provisionally before trial of suit and continue until trial has ended.

JUDGMENT :

BASANT BALAJI, J.

1. F.A.O. No. 96 of 2023 is filed by the petitioners against the order dated 31.7.2023 in I.A. No. 2 of 2023 in O.S. No. 1 of 2023 on the files of Additional District Judge-IV, Thalassery. F.A.O. No. 102 of 2023 is filed by the defendants in the above said suit. I.A. No. 2 of 2023 was filed by the plaintiffs in the suit seeking an interim injunction restraining the respondent or any associated person using the impugned trade mark “SJ Buildware” which is deceptively similar to the petitioners’ mark.

(The parties are referred to as they appeared before the court below in the suit)

2. The plaintiffs filed O.S. No. 1 of 2023 for a declaration that the first plaintiff is the registered proprietor of the trademark “CJ Buildware” and that the 1st plaintiff has the exclusive right to use the said mark in relation to the business of retail showrooms for the distribution of tiles, sanitary wares, paints, electrical and plumbing materials, natural stone, and building materials and other classes of good. A prohibitory injunction is also sought restraining the defendants by themselves as also through their partners, agents, representatives, distributors, assigns, heirs, successors, and all others acting for and on their behalf from using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing in or using the impugned trademark “SJ Buildware” and logos or any other word/mark/label/packaging which may be identical with and/or deceptively similar to the first plaintiff’s trade mark “CJ Buildware” in relation to the said business.

3. Brief facts necessary for the disposal of the appeals are as follows:

The 1st plaintiff is the Managing Partner of the 2nd plaintiff. The first plaintiff is engaged in the business of retail showrooms for the distribution of tiles, sanitary wares, paints, electrical and plumbing materials, natural stone, and building materials. The business of the first plaintiff was established in 1992 by the father of the first plaintiff. The business was started by the 1st plaintiff under the trade mark “CJ Buildware” from the year 2012. The said mark was adopted by abbreviating the name of 1st plaintiff’s grandfather, viz. Chennilathukunnel Joseph and then by combining it with the non-dictionary word ‘Buildware.” The firm has been continuously using the mark since 2012 and thus obtained an indomitable reputation for having the largest selection of tiles, sanitary ware, paints, electrical and plumbing materials, natural stone, and building materials. The first plaintiff applied for numerous trademark registrations and obtained Trademark Registration pertaining to its mark in class 35, with application No. 4153896. The plaintiffs had engaged in substantial advertising and promotion of its business with the trade mark, including visual and electronic media, in leading newspapers and other social media.

4. Defendant Nos.1 and 2 approached the first plaintiff, expressing an interest in starting a partnership firm for conducting the said business at Taliparamba. Accepting the proposal, a partnership deed was executed on 2.2.2018 under the name and style “CJ Buildware” and conducted the business till 2022. Thereafter, due to some internal disputes and differences of opinion in the management of the partnership firm, the first plaintiff expressed his intention to withdraw from the partnership, and accordingly, a release deed dated 1.1.2022 was executed. In the release deed, specific clauses were introduced regarding the use of trade mark “CJ Buildware.”

5. In clause 5 of the release deed, it is stated explicitly that the retiring partner agreed to assign to the continuing partners all the share, title, interest, and claim whatsoever they have in the said partnership business, all its assets and profits, and all other debts and claims of the partnership outstanding against other persons to be held by the continuing partners absolutely for themselves hereafter except for the O