JUDGMENT

[Judgment of this Court was delivered by PUSHPA SATHYANARAYANA, J.]

The Original Side Appeal is directed against the order dated 04.10.2021 passed in O.A.No.65 of 2021 in C.S.No.41 of 2021.

2. The appellant, who is the plaintiff, has filed the above referred application seeking an order of interim injunction, restraining the respondent/defendant, claiming through or under him from in any manner passing off the appellant's/ plaintiff's trademark “C3 Fitness Science” and logo “ ” by using the offending trademark/trade name or any other trademark, which is similar or in any way deceptively similar to or colourable imitation of the appellant's/plaintiff's trademark, either by rendering or offering services including “Health Club Services, Health and Fitness Training” or in any manner advertising the same pending disposal of the suit.

3. The case of the appellant/plaintiff is that he is carrying on business in the name and style of “C3 FITNESS SCIENCE” with logo “ ”, since 2017 and it is a very popular Fitness Centre in the city of Chennai. It is also stated that "CARDIO CIRCUIT CROSFIT" is what C3 denotes. It is further stated that the appellant / plaintiff had started his Fitness Centre in Vepery, Chennai followed by one in Kilpuak, both in a leased premises in the year 2017. The above said name “C3 FITNESS SCIENCE” and logo “ ” have become to be associated exclusively with the appellant/plaintiff, in view of long and continuous usage.

4. While so, the respondent/defendant, who is the Proprietor of the Fitness Centre/Gym “M/s.UNIQUE ONE” at Royapuram, approached the plaintiff for developing his Fitness Centre. The plaintiff also extended his help by advancing loan for interest. The respondent/defendant also offered to manage the Fitness Centre/Gym of the appellant/plaintiff under the trademark “C3 FITNESS CENTRE” with logo “ ”. Later, the respondent sought for Franchise Licence to run the Fitness Centre/Gym at Royapuram under the name and style of “C3 FITNESS CENTRE” and two Franchise Agreements were entered into between them on 13.12.2017 for a period of 6 years. In terms of the Franchise Agreements, it was to pay a sum of Rs.30,000/- per month as Royalty charges and Rs.5,00,000/- as Non-refundable Franchise fee. It was claimed by the plaintiff that the Royalty fees were not paid after December 2017 and there was default in paying the Non-Refundable Franchise fee of Rs.5,00,000/- also. There appears to be certain financial transactions between the two parties. The respondent/defendant also seems to have claimed ownership of the Fitness Centre under the trademark “C3 FITNESS SCIENCE” and “ ” Logo, as if he has invested a sum of Rs.3 crores. It is relevant to note that a civil suit in C.S.No.183 of 2020 filed against the appellant is also pending before this Court.

5. Now, the question that arises for consideration is as to whether the Trademark “C3 FITNESS SCIENCE” and “ ” Logo belong to the plaintiff or the defendant?

6. The plaintiff alleges that the defendant was only the Franchise Agreement Holder and he cannot claim ownership of the Trademark “C3 FITNESS SCIENCE” and Logo “ ”. However, the respondent/defendant contended that the Fitness Centre was being run by him from the year 2002, under the name and style “M/s. UNIQUE ONE” and later, he invested huge money and created “C3 FITNESS SCIENCE ELITE”. There are other allegations against each other between the parties. The respondent/defendant also seems to have applied for registration of the Trademark in the year 2019, declaring as prior user since 2015 and obtained the registration without any objection.

7. From the above facts and on a perusal of the documents relied on by the parties, it appears that the respondent/defendant is the registered holder of the Trademark “C3 FITNES SCIENCE ELITE” (DEVICE) in Registration No.22486 dated 19.07.2019. As per the Registration Certificate, the respondent is using the Trademark from the year 2015. The appellant/Plaintiff has come be