The court upheld the plaintiff's rights as the prior user and registered owner of the trademark, granting an injunction against the defendant's use of a similar mark due to the likelihood of consumer confusion.

JUDGMENT :

G. RADHA RANI, J.

This Civil Miscellaneous Appeal is filed by the appellant – respondent – defendant aggrieved by the order dated 05.07.2024 in I.A No.716 of 2024 in O.S No.151 of 2024 passed by the XI Additional Chief Judge, City Civil Court at Hyderabad.

2. The respondent is the plaintiff. The plaintiff filed the suit against the appellant-defendant for infringement and passing off his registered trade mark “SANTOSH DHABA” and sought for the relief of permanent injunction and to surrender to the plaintiff all the advertisement materials, hoardings, letter heads, visiting cards, office stationary therein of the trade mark SANTOSH or disruptively similar trade mark and to render account of profits made by them by using trade mark SANTOSH. Along with the suit, the plaintiff filed I.A No.716 of 2024 under Order XXXIX Rule 1 and 2 read with Section 151 of CPC to grant ad interim injunction. The appellant – respondent No.1 filed counter to the said application and after hearing both the learned counsel, the trial court passed an order allowing the petition granting interim injunction directing the appellant from restraining the use of the petitioners trade mark SANTOSH DHABA in respect of allied services provided by the plaintiff. Aggrieved by the said order of granting interim injunction, the respondent – defendant preferred this appeal.

3. Heard Sri. G.L.Soni, learned counsel representing Sri N.Vishal, learned counsel for the appellant on record and Sri Ashok Ram Kumar, learned counsel representing Sri Abhishek Agarwal, learned counsel for the respondent on record.

4. Learned counsel for the appellant contended that the appellant was doing the business since 2016 in the name of “SHREE SANTOSH FAMILY DHABA” which was entirely distinct from the respondent – plaintiff’s business. There were more than 25 entities with a prefix or suffix to the word SANTOSH in the market by third parties. The word SANTOSH DHABA was not exclusive to the respondent – plaintiff as Santosh being a noun, the respondent – plaintiff could not claim any exclusive right and restrict the usage of the appellant herein. The appellant had registered his business entity by name “M/s. Shree Santosh Family Dhaba” in the year 2018 and obtained registration services from the Labour Department and license from the Government of Telangana under Telangana Shops and Establishment Act, 1988 and was using the mark without any objection or interruption from any corner. The court below failed to consider that the appellant applied for registration with Government of Telangana Commercial Taxes Department to obtain value added registration certificate in the month of June, 2016, in the name and style of “SHREE SANTOSH FAMILY DHABA”, upon which the authority concerned had issued the certificate dated 14.06.2016 to the appellant. The business of the appellant in the name and style of ‘Shree Santosh Family Dhaba’ was entirely different from that of the plaintiff by name M/s. Santosh Dhaba Exclusive. The appellant was a service provider and proprietor of trade mark for restaurant service marked under the name and style of M/s. Shree Santosh Family Dhaba (TM No.3866680) published in Journal No.1918 dated 09/09/2019 throughout India and had a legally vested and propriety right to use the mark for the said service. To avail the benefit of long-lasting reputation of the mark without interference or any indulgence from anyone, a publication was also made by the appellant regarding Trademark in the journal inviting objections from the public at large dated 09.09.201