Madras High CourtC.S(COMM DIV)/187/2022disposed of

M/S Vasanta Bhavan Hotels India Private Limited v. Salem Sree Vasantha Bhavan

2022-11-16Honourable Mr Justice M. Sundar15 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 16.11.2022

CORAM

THE HON'BLE MR. JUSTICE M. SUNDAR C.S. (Comm.Div.) No.187 of 2022 & O.A.Nos.561 and 562 of 2022 in C.S. (Comm.Div.) No.187 of 2022 M/s.Vasanta Bhavan Hotels India Private Limited Represented by its Director Mr.Anand Krishnan (M-35 years) Having its office at No.34 Developed Plots (South Phase) Industrial Estate, Guindy, Chennai - 600 032 ..Plaintiff Vs.

Salem Sree Vasantha Bhavan No.66/6, Indira Nagar Bangaluru By-pass State Bank Colony opposite to Gokulam Speciality Hospital Swarnapuri Annexe, State Bank Colony Narasothipatti, Salem, Tamil Nadu - 636 004 ..Defendant 1\15

Prayer:

This Civil Suit is preferred under Order VII Rule 1 of CPC read with Order IV Rule 1 of High Court O.S. Rules and Sections 134 and 135 of the Trade Marks Act, 1999 praying for judgment and decree A) Granting a permanent injunction restraining the Defendant their men, servants, agents or anyone claiming through or under them from in any manner infringing the Plaintiff Trade Mark and Trading style "VASANTHA BHAVAN" by using the offending Trade Mark and Trading Style "Salem Sree Vasantha Bhavan" or any other mark or marks which are similar or in any way deceptively similar to or a colorable imitation of the Plaintiffs Trade Mark "VASANTHA BHAVAN".

B)Granting a permanent injunction restraining the Defendant their men, servants, agents or anyone claiming through or under them from in any manner Passing off the Plaintiff Trade Mark and Trading Style "VASANTHA BHAVAN" by using the offending Trade Mark and Trading Style "Salem Sree Vasantha Bhavan" or any other mark or marks which are similar or in any way deceptively similar to or a colourable imitation of the Plaintiff's Trade Mark "VASANTHA BHAVAN".

C) Directing the Defendant to render a true and faithful account of the profits earned by them through the sale of food products bearing the offending trade mark "Salem Sree Vasantha Bhavan" and directing payment of such profits to the Plaintiff by way of damages for infringement committed by the Defendant.

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D) Directing the defendant to surrender to Plaintiff the entire stock of unused offending goods with Trade Mark "Salem Sree Vasantha Bhavan" with name boards, labels, wrappers, boxes, covers, bags, packets, cartons, bills, advertisements, materials, reports, envelops, brochures, printing blocks etc., bearing the offending Trademark for destruction. E) Directing the Defendant to pay the Plaintiff the costs of the suit and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice. For Plaintiff :

Ms.Preetha Natarajan For Defendant :

Mr.S.Kishore Kumar

J U D G M E N T

This judgment/order will now dispose of captioned main suit and captioned two applications.

2. This judgment / order has to be read in conjunction with and in continuation of earlier proceedings made in the listings on 13.10.2022, 27.10.2022 and 14.11.2022 which read as follows: ' Proceedings dated 13.10.2022 3\15

In these proceedings parties shall be referred to by their respective ranks in the main suit for the sake of convenience and clarity.

2. Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 22.09.2022.

3. Today, Ms.Preetha Natarajan, learned counsel on record for sole plaintiff and Mr.S.Kishore Kumar, learned counsel for the lone defendant are before this Commercial Division.

4. It is submitted by both sides that it is possible to give a closure to the matter if it is listed after Diwali vacation. Request acceded to.

5. Interim order already granted by Hon'ble predecessor Judge on 01.09.2022 and extended on 15.09.2022 and 22.09.2022 (operating till today) to continue until next listing. List on 27.10.2022.'

'Proceedings dated 27.10.2022 Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 13.10.2022.

2. In these proceedings also, parties shall be referred to by their respective ranks in the main suit for the sake of convenience and clarity.

3. Today also, Ms.Preetha Natarajan, learned counsel on record for sole plaintiff and Mr.S.Kishore Kumar, learned 4\15

counsel on record for lone defendant are before this Commercial Division.

4. Mr.S.Kishore Kumar, learned counsel on record for lone defendant, adverting to earlier proceedings dated 13.10.2022 submits that if further time is granted, a closure to the main suit may be possible. To be noted, learned counsel requests for two weeks time. Request acceded to.

5. Interim order already granted by Hon'ble predecessor Judge on 01.09.2022, extended on 15.09.2022, 22.09.2022 and 13.10.2022 (operating till today) to continue until next listing.

6. List on 10.11.2022.'

'Proceedings dated 14.11.2022 Ms.Roshini, learned counsel on record for sole plaintiff and Mr.S.Kishore Kumar, learned counsel on record for lone defendant are before this Commercial Division.

2. At request of both sides, list the captioned matter under the cause list caption 'FOR REPORTING SETTLEMENT' dayafter-tomorrow. List on 16.11.2022.

3. Interim order already granted by this Commercial Division is extended until next listing.'

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3. Today, Ms.Preetha Natarajan, learned counsel on record for sole plaintiff and Mr.S.Kishore Kumar, learned counsel for lone defendant are before this Commercial Division.

4. Adverting to aforementioned earlier proceedings, both learned counsel submit that the defendant has since filed a notarized affidavit dated 08.11.2022 and supporting documents in the form of typed-set of papers dated 09.11.2022.

5. A scanned reproduction of the aforementioned affidavit dated 08.11.2022 (together with docket) is as follows: 6\15

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6. Adverting to the aforementioned affidavit, learned counsel for plaintiff submits on instructions that the contents of the affidavit insofar as it relates to change of name from 'Salem Sree Vasantha Bhavan' to 'Salem Sree Shivasakthi Bhavan' and change of FSSAI license are correct. Saying so, learned counsel on record for plaintiff has made an endorsement in the case file and a scanned reproduction of the same is as follows: 11\15

7. To be noted, the prayer paragraph in the plaint is Paragraph 36 and the same reads as follows:

'36. The Plaintiff therefore prays for judgment and decree: A) Granting a permanent injunction restraining the Defendant their men, servants, agents or anyone claiming through or under them from in any manner infringing the Plaintiff Trade Mark and Trading style "VASANTHA BHAVAN" by using the offending Trade Mark and Trading Style "Salem Sree Vasantha Bhavan" or any other mark or marks which are similar or in any way deceptively similar to or a colorable imitation of the Plaintiffs Trade Mark "VASANTHA BHAVAN".

C) Directing the Defendant to render a true and faithful account of the profits earned by them through the sale of food 12\15

products bearing the offending trade mark "Salem Sree Vasantha Bhavan" and directing payment of such profits to the Plaintiff by way of damages for infringement committed by the Defendant. D) Directing the defendant to surrender to Plaintiff the entire stock of unused offending goods with Trade Mark "Salem Sree Vasantha Bhavan" with name boards, labels, wrappers, boxes, covers, bags, packets, cartons, bills, advertisements, materials, reports, envelops, brochures, printing blocks etc., bearing the offending Trademark for destruction.

E) Directing the Defendant to pay the Plaintiff the costs of the suit and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice.'

8. Now that prayers (C), (D) and (E) have been given up by the plaintiff, prayers (A) and (B) stand answered to the benefit of the plaintiff in the light of the aforementioned affidavit dated 08.11.2022 filed by the defendant. If the stated position of the defendant and confirmation of the stated position by the plaintiff are recorded that would draw the curtains on the captioned matter.

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Captioned main suit is disposed of as closed recording the stated position of both sides. Consequently, captioned applications are closed. There shall be no order as to costs.

16.11.2022 Speaking Order/Non-speaking Order Index: Yes/No gpa 14\15

M. SUNDAR,J.

gpa & O.A.Nos.561 and 562 of 2022 in C.S. (Comm.Div.) No.187 of 2022 16.11.2022 15\15