Karnataka High Court
Sri Anantheshwara Foods Private ... vs Mr.Ravikiran on 2 July, 2025
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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MFA No. 3553 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2025
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO. 3553 OF 2025 (IPR)
BETWEEN:
SRI ANANTHESHWARA FOODS
PRIVATE LIMITED REGISTERED OFFICE AT
NO. 56/57, JYOTHI LAYOUT, YELACHENAHALLI,
KANAKAPURA ROAD, BANGALORE-560 078.
REPRESENTED BY ITS MANGING DIRECTOR
MR. K.N.VASUDEVA ADIGA.
...APPELLANT
(BY SRI. DHANANJAY JOSHI., SENIOR ADVOCATE FOR
SRI. NITIN PRASAD., ADVOCATE)
AND:
MR. RAVIKIRAN,
Digitally signed by MAJOR,
PREMCHANDRA M R SON OF NOT KNOW,
Location: HIGH
COURT OF "DOSA CORNER PAAKASHALE"
KARNATAKA DOOR NO.55/1,
NEW D-3/1, OPPOSITE NIRMALA,
CONVENT BUST STOP,
GOKULAM PARK ROAD,
V.V.MOHALLA, MYSURU-570 002.
...RESPONDENT
(BY SRI.RISHABHA RAJ THAKUR., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER XLIII RULE 1(R) OF THE CODE OF CIVIL PROCEDURE.
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MFA No. 3553 of 2025
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THIS MISCELLANEOUS FIRST APPEAL IS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, LISTED FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CAV JUDGMENT
Sri.Dhananjay Joshi., Senior counsel on behalf of Sri.Nitin
Prasad, for the appellant and Sri. Rishabha Raj Thakur, counsel
for the respondent, has appeared in person.
2. Though the appeal is listed today for admission,
with the consent of counsel for the respective parties, it is
heard.
3. The short facts are these:
Vegan Hospitality Private Limited came up with a brand
name called 'PAAKASHALA' to provide food and catering
services in 2013. The brand name was assigned in favor of the
appellant in 2018 by Vegan Hospitality Private Limited. The
appellant is running its catering and restaurant business under
the name and style "PAAKASHALA", which is apart from its
various outlets.
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In January 2025, the respondent was in the process of
starting a restaurant by the name 'DOSA CORNER
PAAKASHALA' in Mysuru, and though the restaurant was yet to
commence operations, the signage had been put up. The
appellant got issued notice on 21.01.2025 calling upon the
respondent to cease and desist from using the said trade name.
The respondent issued a reply on 29.01.2025. It is said that the
respondent inaugurated the restaurant in the name of 'DOSA
CORNER PAAKASHALE', which, according to the appellant,
infringes their trade mark. Hence, the appellant got issued a
Cease-and-Desist Notice dated 13.02.2025 to the respondent
calling upon him to refrain from infringing the appellant's trade
mark and to remove the signage and other infringing materials
within two days. However, the notice returned unserved with
an endorsement, no such person found at the said address; the
appellant attempted to serve the notice by hand. However, the
respondent refused to receive the same and make any
endorsement thereon. The appellant got issued one more
notice through registered post on 20.02.2025, but in vain.
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The appellant filed a suit in O.S.No.1554/2025 seeking a
permanent injunction from infringing the appellant's registered
trade mark. The Trial Court vide order dated 04.03.2025
granted ad-interim injunction and issued suit summons to the
respondent and notice on I.A.No.1 and emergent notice on
I.A.No.2. The respondent entered an appearance and filed a
written statement and a memo seeking to adopt the averments
of the written statement as a response to I.A.Nos.1 and 2. The
appellant also filed an application seeking correction of the
order dated 04.03.2025 (I.A.No.3), and the Trial Court passed
the orders allowing the application seeking correction of the
interim order as prayed for. The respondent filed applications
seeking leave of the Court to file an additional written
statement (I.A.No.4) along with an additional written statement
and seeking to stay the suit until the disposal of the
rectification proceedings initiated by him before the Trade
Marks Registry (I.A.No.5). The Trial Court extended the interim
order dated 04.03.2025 until the disposal of I.A.No.1/2025.
The appellant filed objections to I.A.Nos.4 and 5. The Trial
Court vide order dated 03.05.2025 dismissed the appellant's
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temporary injunction application. Under these circumstances,
the appellant is before this Court.
Counsel for the respective parties urged several
contentions.
4. Sri.Dhananjay Joshi., Senior counsel appearing for
the appellant submits that the order passed by the Trial Court
is opposed to the law and facts of the case, and therefore, the
same is liable to be set aside.
Next, he submits that the order is contrary to the settled
principles of Trade Mark law that as per Section 28(1) of the
Act, the registered proprietor of the Trade Mark shall have the
exclusive right to use the Trade Mark concerning the goods or
services in respect of which the Trade Mark is registered and to
obtain relief in respect of infringement of the Trade Mark in the
manner provided by the Act.
A further submission is made that the Trial Court, despite
holding that the appellant is the registered proprietor of the
Trade Mark "PAAKASHALA" and by implication acknowledging
infringement by the respondent, proceeds not to grant an order
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of temporary injunction. It is submitted that the Trial Court has
erred in holding that the order of temporary injunction would
prejudice the respondent, as it has started its business
recently.
Senior counsel vehemently contended that the Trial Court
exceeded its jurisdiction by holding that the term
"PAAKASHALA" is generic.
Lastly, he submits that the Trial Court has failed to
appreciate that the essential requirements for the grant of a
permanent injunction in respect of a trademark Mark are the
existence of a right on the appellant's behalf and an
infringement or a threat of breach of that right by the
respondent. Hence, he submits that viewed from any angle, the
rejection of a temporary injunction is unsustainable in law.
Counsel, therefore, submits that the appeal may be allowed.
Senior counsel for the appellant placed reliance on the
following decisions:
(1) MIDAS HYGIENE INDUSTRIES (P) LIMITED AND
ANOTHER V/S. SUDHIR BHATIA AND OTHERS,
reported in (2004) 3 SCC 90.
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(2) RENAISSANCE HOTEL HOLDINGS INC. V/S. B.
VIJAYA SAI AND OTHERS, reported in (2022) 5
SCC 1.
(3) PH4 FOOD AND BEVERAGES PRIVATE LIMITED
V/S. M/S. CAFÉ TOIT IN MFA NO.7011/2021
(IPR) disposed of on 17.08.2022.
Counsel Sri.Rishabha Raj Thakur, for the respondent,
justified the order passed by the Trial Court.
Next, he submits that the defendant was intending to
open a restaurant, namely 'DOSE CORNER PAAKASHALE' and
accordingly filed an application, and the same is pending for
consideration.
A further submission is made that the entire foundation of
the claim by the appellant rests on the word 'PAAKASHALA',
which is a generic and descriptive word in common usage,
particularly in the Kannada language. He submitted that the
term 'PAAKASHALA' literally translates to KITCHEN or COOKING
PLACE and is used by several unrelated entities in the food and
hospitality sector in Karnataka.
Counsel vehemently contends that the respondent has
independently and honestly adopted the mark "DOSE CORNER
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PAAKASHALE" in 2025. The respondent's name includes the
prefix "DOSE CORNER", which is the primary identifier, along
with the suffix "PAAKASHALE", which is a phonetically variant
Kannada word for "PAAKASHALA".
Lastly, he submits that the grant or refusal of a
temporary injunction is discretionary. The Trial Court in
extenso, referred to the material on record and has rightly
rejected the grant of a temporary injunction. The appellant has
not made out any case to interfere with the order passed by
the Trial Court. Accordingly, he prayed for the dismissal of the
appeal.
Counsel for the respondent placed reliance on the
following decisions:
(1) MESSRS. HINDUSTHAN DEVELOPMENT
CORPORATION LTD. V/S. THE DEPUTY
REGISTRAR OF TRADE MARKS AND ANOTHER
reported in AIR 1955 CAL 519.
(2) DELHIVERY PRIVATE LIMITED V/S. TREASURE
VASE VENTURES PRIVATE LIMITED reported in
2020 SCC ONLINE DEL 2766.
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(3) BHOLE BABA MILK FOOD INDUSTRIES LTD. V/S.
PARUL FOOD SPECIALITIES (P) LTD reported in
2011 121 DRJ 536.
(4) MARICO LIMITED V/S. AGRO TECH FOOD
LIMITED reported in 2010 SCC ONLINE DEL
3806.
(5) VISA INTERNATIONAL LTD. V/S. VISA
INTERNATIONAL SERVICE ASSOCIATION AND
ANOTHER reported in 2024 SCC ONLINE CAL
7238.
5. Heard the arguments and perused the appeal
papers with care.
6. The issue falls within a narrow compass and relates
to the refusal to grant an order of temporary injunction for
infringement of a registered trade mark. As we all know that an
action for infringement of a trade mark is a statutory remedy
conferred on the registered proprietor of a registered trade
mark for the enforcement of his right to use the trade mark
concerning the goods for which the mark has been registered
and is pursuing it, the plaintiff must prove their title and
exclusive right to use the trade mark in question and further
establish that the defendant has infringed the same by identical
or deceptively similar or colorable imitation of it.
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Temporary injunctions are made in pending proceedings
with the object of maintaining the status quo till the rights of
the parties in the cause are determined. They are made to
prevent the ends of justice from being defeated. When granting
a temporary injunction in trademark cases, Courts primarily
consider three factors: prima facie case, balance of
convenience, and irreparable injury. These factors help
determine if the applicant's rights are likely to be violated and if
an injunction is the appropriate remedy.
Reverting to the facts of the case, the plaintiff is the
owner of a registered trade mark 'PAAKASHALA'. The
appellant's grievance is about the infringement of their trade
mark. The rights of the parties in the cause are yet to be
determined in the pending suit. At present, what is required to
be considered is whether the plaintiff has made out a prima
facie case for the grant of a temporary injunction and whether
the Trial Court has properly exercised the discretionary powers.
I have perused the impugned order with care. The Trial Court,
in my view, has unnecessarily taken pains and dealt with a
temporary injunction application as if it were deciding a main
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issue. There is an unnecessary reference to Section 9 of the
Act, and in paragraph 15 of the order, the Trial Court has
observed that the plaintiff has obtained the trade mark to the
generic name; hence, he cannot claim a monopoly over the
generic word. This reasoning is untenable. In my view, the Trial
Court has totally lost sight of the fact that it is dealing with the
interim application and not the main matter.
It is significant to note that the Trial Court declined to
grant an order of temporary injunction on the sole ground that
the defendant has applied for rectification of the Trade Mark.
The reasoning and the conclusion are untenable. The pendency
of the rectification application has no significance while
considering the temporary injunction application. On the
contrary, the right to seek rectification of a trade mark is
restricted when an infringement suit concerning the same trade
mark is on going. A party cannot directly seek to cancel a Trade
Mark Registration through a rectification petition, if an
infringement suit is already under way.
7. Lastly, counsel Sri.Rishabha Raj Thakur, in
presenting his argument, strenuously urged that the word
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'PAAKASHALA' was not invented by the appellant, and it is a
descriptive word, and there is no prohibition for the defendant
to open and run the restaurant before the grant of trade mark
under the name and style of 'DOSE CORNER PAAKASHALE'. He
argued by saying that merely having registration of a trade
mark called 'PAAKASHALA', which is generic and descriptive,
does not give an exclusive monopoly for the plaintiff to use the
trade mark. The said contentions cannot be accepted. The
respondent's application for the grant of trade mark is yet to be
considered by the authority concerned. Thus, the conclusion of
the Trial Court that the respondent will be put to greater
hardship is totally incorrect. The Trial Court has not exercised
the discretionary powers in the right perspective. Overall, I can
say that the Trial Court has failed to have regard to the
relevant consideration and disregarded the relevant matters. In
my view, the plaintiff has made out a prima facie case for the
grant of a temporary injunction, and accordingly, I order the
same.
8. The order dated 03.05.2025 passed by the XVIII
Additional City Civil Judge (CCH-10) in O.S.No.1554/2025 on
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I.A.No.1/2025 is set aside. The application is allowed, and the
defendant is restrained from infringing the registered trade
mark of the appellant 'PAAKASHALA' either alone or along with
a suffix or prefix or in any other form till the disposal of the
suit.
Counsel for the respective parties placed reliance on
several decisions, but I do not think that the law is in doubt.
Each decisions turns on its facts. The present case is also
tested in the light of the aforesaid decisions.
9. Resultantly, the Miscellaneous First Appeal is
allowed.
Sd/-
(JYOTI MULIMANI)
JUDGE
MRP
