M/S South Thindis vs M/S Billion Smiles Hospitality ...
2022 Latest Caselaw 1080 Kant

                       1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 24TH DAY OF JANUARY, 2022

                     BEFORE

        THE HON'BLE MR. JUSTICE M.I.ARUN

            RFA NO.1488 OF 2012 (IPR)

BETWEEN:

M/S. SOUTH THINDIS,
NO.10, SOUTH CROSS ROAD,
BASAVANAGUDI,
BENGALURU-560 004,
REPRESENTED BY ITS
PARTNER
MR. DHANANJAYA
S/O B.S. MANJUNATH
AGED ABOUT 32 YEARS.
                                     ... APPELLANT
(BY SMT. ANNU BHARDWAJ ADVOCATE FOR
    SRI. HARIKRISHNA S. HOLLA, ADVOCATE)

AND:

M/S BILLION SMILES HOSPITALITY PVT LTD
EARLIER KNOWN AS
M/S. SOUTH INDIES RESTAURANTS PVT LTD,
AT NO.565/D, 7TH MAIN, HAL 2ND STAGE,
INDIRA NAGAR,
BENGALUURU-560 038
REPRESENTED BY ITS MANAGING DIRECTOR,
MR. VIJAY ABHIMANYU
                                   ... RESPONDENT
(BY SMT. JAYNA KOTHARI SENIOR COUNSEL FOR
   SMT.NAYANA        V,      ADVOCATE         FOR
    CAVEATOR/RESPONDENT)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
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20.07.2012 PASSED IN O.S.NO.25852/2011 ON THE
FILE OF THE XVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT
FOR PERMANENT INJUNCTION AND MANDATORY
INJUNCTION.

     THIS RFA COMING ON FOR HEARING, THROUGH
VIDEO CONFERENCING THIS DAY THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

Aggrieved by the judgment and decree passed

in O.S.No.25852/2011, the defendant therein has

preferred this appeal.

2. The plaintiff is a registered trade mark

holder of 'SOUTHINDIES' under class 42. The plaintiff

is involved in running business of restaurants under

the said name of 'SOUTHINDIES'. The defendant has

also started a restaurant in the name of 'SOUTH

THINDIS'. On the ground that the name of the

defendant is phonetically similar and it infringes the

registered trade mark of the plaintiff,

O.S.No.25852/2011 was filed by the plaintiff. The

trial Court had decreed the said suit and defendant is

restrained by means of perpetual injunctions from

infringing the plaintiff's trademark 'SOUTH INDIES' by

using any identical or deceptively similar trademark

like 'SOUTH THINDIS' and passing off the plaintiff's

mark. The defendant was also directed to pay the

damages of Rs.1,00,000/- to the plaintiff.

3. Aggrieved by the same, the defendant

therein has preferred this appeal. Pursuant to the

order dated 14.02.2013, the defendant has deposited

a sum of Rs.1,00,000/- before the Court.

4. After arguing the matter for sometime,

the learned counsel for the appellant/defendant has

filed a memo dated 21.01.2022, which reads as

under:-

"The appellant herein undertakes to not use the trademark "SOUTH THINDIS" for running its vegetarian restaurant. The appellant shall continue to use "SOUTHVEG THINDIS" for its restaurant and the respondent has no objection for such use. It is prayed that the above memo may be taken on record and the appeal may be accordingly disposed off".

5. Learned counsel for respondent/plaintiff

submits that she has no objection if the appellant

were to use 'SOUTHVEG THINDIS' and not 'SOUTH

THINDIS' as the name of the restaurant belonging to

the appellant/defendant.

6. Her submission is taken on record.

7. Further, learned counsel for appellant

submits orally that a sum of Rs.1,00,000/- deposited

before the Court may be released in favour of

respondent herein.

8. Her submission is placed on record.

9. Hence the following:-

ORDER

i. The appeal is hereby dismissed reserving liberty to the appellant to use the name 'SOUTH VEG THINDIS' as the name of their restaurant, if it is not otherwise prohibited.

iii. The amount of Rs.1,00,000/-(Rupees One Lakh Only) in deposit before the Court shall be paid to the respondent after due identification.

Sd/-

JUDGE

AG