The main legal point established in the judgment is that the right to sue for infringement of a registered Trademark is a right in rem and is not arbitrable. The protection of a registered Trademark is a statutory right, and issues related to its infringement require adjudication through trial.

JUDGMENT :

(Prayer: This application filed under Order XIV Rule 8 of O.S Rules R/w. Section 8 of Arbitration and Conciliation Act to refer the parties to this suit to arbitration proceedings as per clause 31 of the limited liability partnership agreement dated 28.09.2018 and consequently, dismiss the suit.)

1. Application filed under Section 8 of the Arbitration and Conciliation Act 1996 seeking to refer the parties to the suit to arbitration proceedings as per clause 31 of the Limited Liability Partnership Agreement dated 28.09.2018 and consequently, dismiss the suit.

2. In the affidavit filed in support of the said application, the applicant had stated that the suit had been filed suppressing crucial material facts. It had been stated that the applicant and the respondent had entered into a partnership on 14.10.2017 for carrying on restaurant business in the name and style of “New Pattukottia Kamatchi Mess”. It was started in T.Nagar. Thereafter, a Limited Liability Partnership was formed on 28.09.2018. By Supplemental Agreement dated 12.10.2018, further partners were included. It was stated that the goodwill in the trademark “New Pattukottai Kamatchi Mess”, logo, trademark and combination of recipes, cannot be used by any other partner except with the written consent of the applicant. It had been stated that the suit had been filed holding out that the applicant had infringed the registered Trademark of the Limited Liability Partnership by opening a restaurant under the name “New Pattukottai Kamatchi Mess” . It was however stated that the respondent himself is running a restaurant in the name of “New Pattukottai Kamatchi Mess” and that the said fact had been suppressed in the plaint. It was also claimed that the applicant was the absolute owner of the Trademark, Logo and the recipe. It was further stated that under the agreement, Clause 33 provided as follows:-

“Arbitration (1) – All the matter not expressly provided in this agreement, shall be decided by the consent of all the parties by writing. Failing that all disputes and questions about and in connection with the LLP under this agreement arising between the partners or between any of them and the legal representatives of the partners or with the LLP at any time and time to time, shall be settled by conciliation or by arbitration as provided under the Arbitration and Conciliation Act, 1996 as if the parties to the dispute have consented in writing for determination of the same as aforesaid and the provisions of the said act apply accordingly.”

3. It was therefore stated that since all disputes are to be referred to arbitration, and when the respondent had failed to furnish accounts of the firm and had also issued a show cause notice of expulsion of the applicant from the partnership, the applicant had filed O.A.Nos. 591 & 592 of 2019 and the respondent had filed O.A.Nos. 551 & 552 of 2019. It was stated that all the applications were disposed of by a common order dated 28.09.2019 referring the disputes to arbitration. Injunctions were also granted. It was further stated that the dispute regarding usage of Trademark by one of the partner against the other partners is covered under clause 10 of the agreement which is as follows:-

“The party of Second Part ie., G.Suthakar is having cooking skills, long experiences, developed recipe and other support services in running of Noon time restaurant. Hence, the name, logo, trademark of the restaurant, combination of recipe cannot be used by other partners any additional branch opening other than the proposed two branches cannot be carried out without the written prior concurrence of G.Suthakar.”

4. It was stated that in the instant suit, interim orders in O.A.Nos. 784 & 785 of 2019 had been granted till the disposal of the arbitration proceedings. It was further stated that the disputes regarding usage of the Trademark can also be referred to arbitration. It was therefore stated that the present suit is barred since there was an ar