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M/s. Thalappakatti Naidu Anandha Vilas Biriyani Hotel, Represented by its partner, D. Nagasamy v/s Thalapakattu Biriyani

    C.S. No. 300 of 2019 & O.A. Nos. 480 & 481 of 2019

    Decided On, 24 July 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Plaintiff: M/s. Vijayan Subramanian, Advocate. For the Defendant: Set Exparte.



Judgment Text


(Prayer: This Civil Suit is filed under Order IV Rule 1 of Original Side Rules read with Order VII Rule 1 of CPC., and Sections 134 & 135 of Trade Marks Act, 1999 praying for the following reliefs:

(a) for 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 “Thalappakatti” “Thalapakattu” or any other mark or marks which are similar or in any way deceptively similar to or a colourable imitation of the plaintiffs Trade Mark “Thalappakatti Biriyani hotel”.

(b) for 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 “Thalappakatti Biriyani hotel” by using the offending Trade Mark and Trading Style “Thalapakattu” or any other mark or marks which are similar or in any way deceptively similar to or a colourable imitation of the plaintiffs Trade Mark “Thalappakatti Biriyani hotel”;

(c) direct 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 “Thalapakattu” 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 “Thalapakattu” 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; and

(e) directing to the defendant to pay the plaintiff the costs of the suits.)

1. The plaintiff M/s. Thalappakatti Naidu Anandha Vilas Biriyani Hotel, Chennai, had filed the present suit claiming that during 1957, Mr.P.Nagasamy Naidu alias Thalappakatti Naidu, had commenced hotel business for preparation and serving Biriyani at Dindigul. It is claimed that the grandfather of the plaintiff sported a Thalappa and was therefore known as Thalappakatti Naidu and the hotel was known as Thalappakatti Naidu Anandha Vilas Biriyani Hotel.

2. It is claimed by the plaintiff that the hotel business had acquired enormous popularity for the quality and flavour for the preparation of Biriyani in the name of Thalappakatti Naidu Biriyani. It is also stated that after the death of P.Nagasamy, his son N.Dhanabalan continued the hotel business. The plaintiff is the son of N.Dhanabalan. The plaintiff claimed that the hotel business has acquired extensive and reputation and goodwill and also is very famous and had been referred in several Tamil magazines. It had also been referred is several films like Kumbakarathangaiyaa, Andhapuram, April Madhathil, Red, Kutthu, Biriyani and Chennai 600 028. It is therefore claimed that the plaintiff is a prior usage and had been using in the name and mark atleast from the year 1999, though there is evidence to show that the plaintiff is using it from the year 1957. The plaintiff had also occasion to issue notices to various users of the offending Trademark Thalappakattu and in several suits, this Court had granted protection to the plaintiff from infringement.

3. The plaintiff has restaurants in Dindigul, Coimbatore, Bathalagundu and in 42 places in Chennai and also has two branches in USA and also branches in France, Malaysia, Singapore, Colombo and UAE. It is stated that the defendant had adopted an identical Trademark and trading style “Thalappakatti”, to deceive the general public. Under these circumstances, the plaintiff had approached this Court seeking the reliefs as stated in the plaint.

4. The defendant though served, had decided not to participate in the judicial proceedings and was set ex-parte on 06.01.2020. The plaintiff then adduced oral and documentary evidence. Proof affidavit was filed by Mr.V.Kamesh, Manager -Admin of the plaintiff firm. Exhibits P-1 to P-28 were marked. The partnership deed/Form-A of the plaintiff dated 20.11.2013 had been marked as Ex.P21; Copy of the Registration Certificate under class 43 dated 07.08.2014 had been marked as Ex.P23; copy of the legal notice issued by the plaintiff to the defendant had been marked as Ex.P24; Copy of the Legal Usage Certificate of the plaintiff dated 27.03.2018 had been marked as Ex.P25 and photocopies of the photos of plaintiff’s and Defendant’s hotels had been marked as Exs.P26 & P27. Ex.P-26 is as follows:-

“IMAGE”

Ex.P27 is as follows:-

“IMAGE”

5. The combination of the style shows that the defendant is also using the very same word “Thalappakatti Biriyani” in prominent letters and the only diffence is in the last letter “U” and “I”, which is very insignificant. It is seen that the defendant is attempting to infringe the right of the plaintiff. Naturally, the Court will have to protect the rights of the plaintiff.

6. In view of these facts, this Civil Suit is decreed with costs as assessed under Section 35 of the amended CPC with respect to the relief of ‘a’ & ‘b’, namely,

(a) for 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 “Thalappakatti” “Thalapakattu” or any other mark or marks which are similar or in any way deceptively similar to or a colourable imitation of the plaintiffs Trade Mark “Thalappakatti Biriyani hotel”.

(b) for 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 “Thalappakatti Biriyani hotel” by using the offending Trade Mark and Trading Style “Thalapakattu” or any other mark or marks which are similar or in any way deceptively similar to or a colourable imitation of the plaintiffs Trade Mark “Thalappakatti Biriyani hotel”;

7. The suit is dismissed with respect to the relief of ‘c’ & ‘d’, namely,

(c) direct the d

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efendant to render a true and faithful account of the profits earned by them through the sale of food products bearing the offending trade mark “Thalapakattu” 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 “Thalapakattu” 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. 8. Consequently, connected Applications are also closed.
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