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2019 Supreme(Mad) 2441
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
New Pattukottai Kamatchiu Mess - Nunpahal Unavagam LLP Represented by its Designated Partner K. Selvakumar – Appellant
Versus
New Pattukottai Kamatchi Mess, Represented by its Proprietor, G. Suthakar – Respondent
O.A.Nos. 784 & 785 of 2019 in C.S.No. 503 of 2019
Decided on : 19-09-2019
Advocate Appeared:
For the Applicant :Manishankar, Senior Counsel for M/s. Kavitha Rameshwar Advocate.
For the Respondent:M/s. T.S. Baskaran, Advocate.
The Defendant's use of the trade mark for his individual business constituted infringement as per the Trade Mark Act, and the dispute was subject to arbitration proceedings.
Headnote:
Infringement - Partnership Dispute - Limited Liability Partnership Act, 2008 - Trade Mark Act - [LLP, Partnership Dispute, Trade Mark Act]
Fact of the Case:
Partnership dispute arose between the Plaintiff and Defendant regarding the use of the trade mark 'New Pattukottai Kamatchi Mess'. The Plaintiff sought an injunction to restrain the Defendant from using the trade mark for his individual business.
Finding of the Court:
The Court found that the Defendant's opening of a restaurant using the trade mark of the LLP for his individual business constituted infringement. The Court also held that the dispute was subject to arbitration proceedings and restrained the Defendant from using the trade mark until the disposal of the Arbitral Proceedings.
Issues: Partnership dispute, infringement of trade mark, entitlement to use the trade mark, validity of injunction
Ratio Decidendi: The Defendant's use of the trade mark for his individual business constituted infringement as per the Trade Mark Act. The dispute was subject to arbitration proceedings, and the Defendant was restrained from using the trade mark until the disposal of the Arbitral Proceedings.
Final Decision: The Court granted an injunction restraining the Defendant from using the trade mark 'New Pattukottai Kamatchi Mess - Nunpahal Unavagam LLP' or any similar mark until the disposal of the Arbitral Proceedings.
JUDGMENT :
(Prayer: O.A.No.784 of 2019 has been filed to pass an order of ad interim injunction restraining the Respondent/Defendant from passing off their food products as that of the Plaintiff pending disposal of the suit and O.A.No.785 of 2019 has been filed to pass and order of ad interim injunction restraining the Respondent/Defendant from in any manner using the mark/words NEW PATTUKKOTTAI KAMATCHI MESS or any other mark which is identical or deceptively similar to the registered trade mark of the Plaintiff NEW PATTUKKOTTAI KAMATCHI MESS NUNPAGAL UNAVAGAM LLP.)
This Original Applications have been filed to grant an ad interim injunction restraining the Respondent/Defendant from passing off their food products as that of the Plaintiff using the mark/words New Pattukkottai Kamatchi Mess or any other mark which is identical or deceptively similar to the registered trademark of the plaintiff New Pattukkottai Kamatchi Mess Nunpahal Unavagam LLP pending disposal of the suit.
2. The Applicant is a Limited Liability Partnership under the provisions of the Limited Liability Partnership Act, 2008 in the name of "New Pattukottai Kamatchi Mess" - Nunpahal Unavagam LLP"(hereinafter referred to as "LLP"). The LLP came into being by the initial agreement dated 28.09.2018 and by the supplemental agreement dated 12.10.2018. It was decided to carry on business of the LLP in the name of "New Pattukottai Kamatchi Mess - Nunpahal Unavagam LLP". It has been incorporated in the supplemental agreement that pursuant to the LLP agreements, business would commence by opening two restaurants - one in Anna Nagar and the other in Velacherry, both at Chennai. Initial partners were the Plaintiff and the proprietor of the Respondent/Defendant one G. Suthakar. Subsequently three other partners, viz., 1. Mr.Devaraj 2.K.Janani and 3. Saraswathy were also included in the LLP.
3. After incorporation of the LLP, registration of trademark was obtained on 09.05.2019 in the name of LLP. Meanwhile, certain differences of opinion arose between the other partners of the LLP and the proprietor of the respondent/defendant, Mr.G.Suthakmar on account of his indifferent attitude. He issued notice dated 24.04.2009 which was replied by the Applicant/Plaintiff on 30.04.2019. It is the contention of the Plaintiff that the Respondent/Defendant Mr.G. Suthakar has not invested any capital whatsoever as evident from LLP Agreement and he become a partner only on account of his proclaimed skills in cooking and culinary knowledge. Out of Rs.30 lakhs Mr.G. Suthakar has invested only Rs.1000/- and remaining amount was invested by the other partners. However, it was agreed to give him 30% share in the 'Profit and Loss' of the entity. When the matter stood thus, Mr.G. Suthakar had sent a notice dated 06.05.2019 seeking to "dissolve the LLP with immediate effect". Thereafter, other partners unanimously decided to expel Mr.G. Suthakar from the LLP and show cause notice was issued on 6.5.2019 and the extraordinary meeting held on 09.05.2019 it was decided to expel the proprietor of the Defendant viz., Mr.G. Suthakar from the LLP and other partners continue the LLP since they have invested huge amount. Now, the First defendant tried to indulge the smooth running of the Restaurant.
4. When the matter stood thus, other, other partners of LLP filed application in O.A.Nos.552 of 2019 seeking order of injunction restraining the defendant from interfering with the business and day to day operation of "New Pattukottai Kamatchi Mess - Nunpahal Unavagam LLP." Similarly the First Defendant also filed rival application seeking injunction in O.A.No.592 of 2019. When the matter was reserved the First Respondent has now opened a restaurant in the name and style of “New Pattukottai Kamatchi Mess” at No.22, Govindan Street, T. Nagar, Chennai 600017, wantonly adopted the identical name i.e., “New Pattukottai Kamatchi Mess”. The defendant was aware of the trade mark registered in favour of LLP as he himself was
