The registration of a trademark constitutes a fresh cause of action for infringement, allowing the filing of fresh applications and a new suit. The causes of action for the first and second suits must be distinct to avoid being barred by Order II, Rule 2, CPC.

1. Thalappakatti Naidu Anandha Vilas Biriyani Hotel, Dindigul represented by its partner N.Dhanapalan came up with the suit C.S.No.203 of 2007, seeking (i) a decree of permanent injunction restraining the defendant therein from committing infringement of the plaintiff's trademark and also (ii) a decree of permanent injunction restraining the defendant from passing off their food products as that of the plaintiff's. Pending suit, the plaintiff moved two applications for injunction in O.A.Nos.298 and 299 of 2007, one for infringement and another for passing off. Both the applications for injunction were allowed by me by an order dated 7.11.2007. Challenging the common order passed in both the applications, the defendant in C.S.No.203 of 2007 filed two appeals in O.S.A.Nos.223 and 224 of 2008. In the course of hearing of the appeals, both parties agreed to an interim arrangement, as suggested by the Division Bench, without prejudice to the contentions of each other. As per the said interim arrangement, the defendant in C.S.No.203 of 2007 was permitted to change their name as "Chennai Rawther Thalappakattu Biriyani". The appeals were accordingly disposed of on 19.11.2008 with a direction to expedite the trial of the suit.

2. Thereafter, the defendant in C.S.No.203 of 2007 filed a written statement in June 2009 and issues were framed on 3.7.2009. The suit was posted for trial and documents on the side of the plaintiff were marked in September 2010. However, the cross-examination of PW-1 did not proceed.

3. But in the meantime, the defendant in C.S.No.203 of 2007, who originally had only 4 outlets in the City of Chennai, started expanding its business and opened 9 more outlets (in addition to the 4 already in existence). The defendant also hosted a website with the name "Thalappakattu".

4. Even before the institution of the above suit, the plaintiff in C.S.No.203 of 2007 had applied for registration of the trademark "Thalappakatti" under application No.1408388. The defendant in that suit had also applied for registration under application No.1385141. By an order dated 22.9.2010, the Deputy Registrar of Trade Marks allowed the application of the plaintiff and issued a Certificate of Registration on 23.9.2010. By another order of the same date, the defendant's application was refused.

5. Therefore, on the basis of the registration obtained by them, the plaintiff filed applications in M.P.Nos.1 and 1 of 2010 in O.S.A.Nos.223 and 224 of 2008, seeking a modification of the order passed in O.S.A.Nos.223 and 224 of 2008 dated 19.11.2008. But the applications were later allowed to be withdrawn with liberty to file appropriate application in the suit itself, by a common order passed by the Division Bench of this Court dated 6.1.2011.

6. With the liberty so granted, the plaintiff in C.S.No.203 of 2007 filed (i) O.A.Nos.48 and 49 of 2007 in C.S.No.203 of 2007 for interim orders of injunction restraining the defendant from opening further retail outlets/restaurants by using the offending trademark and restraining the defendant from continuing to use the offending trademark and (ii) C.S.No.32 of 2011 for infringement and passing off, based upon the subsequent cause of action viz., the opening of more outlets by the defendant and the registration of the trademark of the plaintiff. Along with C.S.No.32 of 2011, the plaintiff has also moved O.A.No.54 of 2011 for an interim injunction restraining the defendant from committing infringement of the plaintiff's registered trademark.

7. Thus, I have on hand, two fresh applications for injunction in the first suit viz., C.S.No.203 of 2007, where the reliefs are confined to further opening of outlets using the offending trademark and committing further infringement of the registered trademark. I also have on hand, a fresh suit C.S.No.32 of 2011 instituted on the basis of the subsequent cause of action viz., the opening of more outlets and the registration of the trademark of the plaintiff.

8. I ha