IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
FAO NO. 14 OF 2022
AGAINST THE ORDER IN IA 2/2021 IN OS 1/2021 OF III ADDITIONAL
DISTRICT COURT, THRISSUR
APPELLANT/RESPONDENT/DEFENDANT:
RADHAKRISHNAN PUTHEN VEEDU NARAYANAN
81/4099, PULIMOOTTIL TEXTILES, MG.ROAD, STATUE,
THIRUVANANTHAPURAM, KERALA - 695 001.
BY ADVS.
D.KISHORE
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
ARYA JOSEPH
RESPONDENT/PETITIONER/PLAINTIFF:
PULIMOOTTIL SILKS
PALACE ROAD, THRISSUR, KERALA - 680 020,
A PARTNERSHIP FIRM,
REPRESENTED BY ITS PARTNER ABRAHAM CHACKO,
AGED 61 YEARS, S/O.OUSEPH CHACKO PULIMOOTTIL,
RESIDING AT PULIMOOTTIL HOUSE, 11A,
SKYLINE WILLOW HEIGHTS, GODSAIKUNNU,
KURIYACHIRA P.O., THRISSUR - 680 006.
BY ADVS
BENOY K.KADAVAN
LAYA GEORGE
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO NO. 14 OF 2022
2
JUDGMENT
Heard both sides.
2. The appeal is against the order of injunction granted by the trial court restraining the defendant from proceeding with his business in the name and style of 'PULIMOOTTIL TEXTILES'. The respondent/petitioner/plaintiff claims right both under infringement and passing off for their business in the name of 'PULIMOOTTIL SILKS'.
3. It was contended by the appellant/ defendant that what the plaintiff had obtained by way of registration is pertaining to a device mark with a pink colour label. Inter alia, it is contended that there cannot be any acquisition of right by way of registration by utilizing a geographical name "PULIMOOTTIL". It is an admitted fact that the business of the defendant is by using the name 'PULIMOOTTIL TEXTILES' and FAO NO. 14 OF 2022 3 not by 'PULIMOOTTIL SILKS'. Though passing off is also claimed in reference to the exception under Section 9 of the Trade Marks Act, 1999, I am of the view that it requires detailed consideration by the trial court. As such, the abovesaid question is left open for consideration by the trial court, i.e. with respect to whether the expression "PULIMOOTTIL" would come under the purview of geographical name with the exception carved out of Section 9 of the Act. Prima facie it appears that the word "PULIMOOTTIL" stands for a geographical name. The business of the defendant is in the name and style of 'PULIMOOTTIL TEXTILES' and not in the name of 'PULIMOOTTIL SILKS', and as such the injunction granted by the trial court cannot be sustained and the same will stand set aside and vacated with the liberty of the parties to agitate their respective entitlement before the trial court. FAO NO. 14 OF 2022 4 There will be a direction to the trial court to dispose of the matter untrammeled by any of the observations contained in the impugned order as well as this judgment. All issues are left open for consideration by the trial court. The parties shall appear before the trial court on the next posting date to proceed further in the matter. The trial court shall dispose of the matter within a time schedule of eight months from the next posting date.
The appeal is allowed in part accordingly. No cost.
Sd/-
P.SOMARAJAN JUDGE SPV