Jaya Ram Banan vs Mahinder Dara
2002 Latest Caselaw 1354 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present suit is instituted by the plaintiff as against the defendants praying for a decree of permanent injunction restraining the defendants from using the offending trade mark/trade name "SUKH SAGAR" and also from passing off and for rendition of accounts as also for damages and delivery of the goods of the defendants to the plaintiff.

2. It is stated by the plaintiff that the plaintiff is carrying on the business of South Indian prepared foods in the name of SAGAR FOOD HOME, SAGAR RATNA and SAGAR. It is the further case of the plaintiff that he is using the trade mark SAGAR continuously and exclusively since 1980 in relation to the said business of the plaintiff and that the trade name 'SAGAR' and 'SAGAR RATNA' is known and popular for its quality South Indian food preparations.

3. The application for registration for registering the aforesaid trade mark 'SAGAR 'and 'SAGAR RATNA' filed by the plaintiff is pending for consideration by the appropriate authority under the Trade and Merchandise Marks Act. It is also stated that in the past the claim of the plaintiff in respect of the aforesaid trade marks has been upheld by this Court in Suit Nos. 1147/1994 and 1563/1998. It is alleged that the defendant is carrying on the business of South Indian food under the name 'SUKH SAGAR'. It is also stated that the trade mark/name adopted by the defendants is identical with and/or deceptively similar with the trade mark and trade name of the plaintiff and, therefore, the present suit is filed seeking for the aforesaid reliefs.

4. Summons were taken out pursuant to the orders of this Court. When the said summons were delivered to the defendants, they refused to accept the same and, therefore, the aforesaid service was accepted to be sufficient service on the defendants. On 20th September, 2001, an ad interim injunction was granted in favor of the plaintiff and against the defendants restraining the defendants from using the name 'SAGAR' in relation to their business of restaurant/hotel Sukh Sagar. The defendants were ordered to be proceeded ex pane as no written statement was filed for contesting the suit.

5. At the request of the counsel appearing for the plaintiff he was permitted to lead evidence by filing affidavit in terms of which affidavit by way of evidence is filed. The said affidavit is sworn by Mr. Jaya Rama Banan, who is the plaintiff in the present suit and is also the sole proprietor of Sagar Food Home. In his affidavit by way of evidence, he has proved the statements made in the plaint. He has also stated that the plaintiff is using trade mark 'SAGAR' and 'SAGAR RATNA' for a long period of time and his applications for registration are pending for consideration. It is also stated that due to continuous long user of the said trade mark 'SAGAR' and 'SAGAR RATNA', the plaintiff has acquired exclusive rights to the use of the said trade mark/name in respect of South Indian foods. It is also stated that the defendants adopted the trade mark 'SUKH SAGAR' which is identical with and deceptively and phonetically similar with the trade mark and trade name of the plaintiff. The photographs of the defendants restaurant and cash receipt are proved as P-l to P-3.

6. The evidence placed on record proves and establishes that the trade mark/trade name of the defendants is similar and that both the plaintiff and the defendants are dealing in the similar nature of food item and, therefore, there is possibility of confusion being created in the market that the defendants business is the business of the plaintiff. In that view of the matter, a decree is granted in favor of the plaintiff and against the defendants by issuing a permanent injunction restraining the defendants, it partners, agents and all other persons acting on their behalf from using the name 'SAGAR' in relation to their business of restaurant/hotel SUKH SAGAR in any manner in order to prevent the act of passing off the goods of the defendants as that of the plaintiff.

7. A decree is also granted in favor of the plaintiff and against the defendants directing the defendants to deliver all goods, literature, packing material, labels and all other connected materials bearing the impugned name 'SUKH SAGAR'/'SAGAR' which shall be destroyed.

8. In view of passing off a decree in the aforesaid manner counsel appearing for the plaintiff states that he is not pressing the relief claiming damages from the defendants. Therefore, the said relief stands disposed of as not pressed.

9. The plaintiff shall also be entitled to cost which I assess at the amount for which the Court-fee was paid by the plaintiff.