The absolute rights acquired by the proprietor of a registered trade mark and the importance of proving infringement and passing off in cases of registered trade marks.

1. Civil Miscellaneous Appeals filed to set aside the judgment and decree passed by the learned Principal District Judge, Villupuram in I.A.No.576 and 577 of 2012 in O.S.No.197 of 2012 dated 31.10.2012 and allow the appeal by granting interim injunction pending disposal of the suit.

2. The appellant filed a suit in O.S.No.197 of 2012 before the Principal District Court, Villupuram under the Trade Marks Act 1999, seeking permanent injunction restraining the respondent or any one, claiming through him from in any manner infringing the plaintiff's registered trade mark “VASANTHA BHAVAN” and also seeking permanent injunction, restraining the defendant for a passing off action.

3. Along with the suit, he had filed an application in I.A Nos.576 of 2012 and 577 of 2012 for an ad-interim injunction regarding the same relief, pending suit. A common affidavit was filed to make out a prima-facie case and on notice, the respondent filed his counter in both the applications.

4. The learned Principal District Judge, Villupuram considered both the applications separately and ultimately, dismissed both the applications. Aggrieved by which, the plaintiff is before this court.

5. Since the issues involved in both the Interlocutory Applications are one and the same, both the appeals are taken up and they are disposed of by a common judgment.

6. The brief facts of the case are as follows :

For convenience sake, the parties are referred as appellants and respondent.

7. The first appellant is carrying on hotel business from the year 1974 under the name and style of “VASANTHA BHAVAN” and the 2nd appellant was incorporated as a Private Limited Company in the year 2003.

8. The appellants have adopted a trade mark “VASANTHA BHAVAN” in the year 1974 and have been doing the hotel business and catering services for more than 4 decades. They have registered their trade marks since 29.10.2001 which are as follows :

Registration No. Mark Class

1055003 VASANTHA BHAVAN 29

1055004 VASANTHA BHAVAN 30

1055005 Food Waves

VASANTHA BHAVAN 16

1055006 Food Waves

VASANTHABHAVAN 29

1055007 Food Waves

VASANTHA BHAVAN 30

1055009 “V” Monogram 29

The registered trade marks are duly renewed from time to time and are still valid and subsisting.

9. However, the trade mark law prevailing till 2003 did not allow for registration of “services”. However, after the law enabled “services” also to be registered as trade marks from 15.9.2003, the appellant applied for and got a registration in the name of the second appellant for the Trade mark “Namma Veedu Vasantha Bhavan”.

10. The appellants are identified only as “VASANTHA BHAVAN” by virtue of registration. A chain of restaurant services are run by the appellants and the appellants are enjoying the reputation and goodwill on the trade mark “VASANTHA BHAVAN”.

11. In September 2012, the respondent has unveiled his hotel VASANTHA BHAVAN at Mailam Road, Tindivanam. It is the contention of the appellant that the adoption of the mark “VASANTHA BHAVAN” by the respondent is with an ulterior motive to cause deception and confusion in the minds of the public. The respondent's use of the mark “Vasantha Bhavan” in relation to the hotel business will affect the plaintiff's goodwill and reputation.

12. It is contended that if the respondent is allowed to use or continue with the use of the registered trade mark of the appellant “Vasantha Bhavan”, it will cause irreparable loss and damage to the reputation and good will of the appellant. Therefore, the respondent must be injuncted as the balance of convenience lies in favour of the appellant.

13. However, in the counter, the respondent would deny the infringement of the trade mark “Vasantha Bhavan”. He would also state that he is not the owner and no way connected with the hotel Vasantha Bhavan in the Mailam road at Tindivanam. According to the respondent, the said hotel had been in existence for more than 10 years and the suit itself is misconceived.

14. It is also submitted that from the docum