Madras High Court
M/S.Vasanta Bhavan Hotels India ... vs Hotel Jain Vasantha Bhavan on 28 June, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
Civil Suit (Comm.Div.) No.236 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.06.2024
CORAM
THE HONOURABLE Mr. JUSTICE P.VELMURUGAN
Civil Suit (Comm.Div.) No. 236 of 2023
M/s.Vasanta Bhavan Hotels India Private Limited
Represented by its Director
Mr.Anand Krishnan
Having its office at No.34
Developed Plots (South Phase)
Industrial Estate, Guindy,
Chennai – 600 032. ... Plaintiff
Vs.
Hotel Jain Vasantha Bhavan
No.474 + R26, Gingee – Tindivanam Road
Kalayiyur, Tamil Nadu – 604 206. ... Defendant
Plaint has been filed under Order VII Rule I of the Code of Civil
Procedure read with Order IV, Rule 1 of High Court Original Side Rules
and Sections 134 and 135 of the Trade Marks Act, 1999, and plaint
numbered as C.S.(Comm.Div.) No.236 of 2023 praying for judgment and
decree as follows :
a) granting a permanent injunction restraining the defendant, their
men, servants, agents or anyone claiming through or under them from in
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Civil Suit (Comm.Div.) No.236 of 2023
any manner infringing the plaintiff Trade Mark and Trading style
''VASANTA BHAVAN'' by using the offending Trade Mark and Trading
style ''HOTEL JAIN VASANTHA BHAVAN'' or any other mark or
marks which are similar or in any way deceptively similar to or a
colorable imitation of the plaintiff's Trade Mark ''VASANTA
BHAVAN''.
b) granting 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
''VASANTA BHAVAN'' by using the offending Trade Mark and Trading
style ''HOTEL JAIN VASANTHA BHAVAN'' or any other mark or
marks which are similar or in any way deceptively similar to or a
colorable imitation of the plaintiff's Trade Mark ''VASANTA
BHAVAN''.
c) directing 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 ''HOTEL JAIN VASANTHA BHAVAN'' and
directing payment of such profits to the plaintiff by way of damages for
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Civil Suit (Comm.Div.) No.236 of 2023
infringement committed by the defendant.
d) directing the defendant to surrender to plaintiff the entire stock
of unused offending goods with Trade Mark ''HOTEL JAIN
VASANTHA BHAVAN'' 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.
e) directing the defendant to pay the plaintiff the costs of the suit.
For Plaintiff : Mr.Vijayan Subramanian
For Defendant : Set ex-parte on 03.06.2024
--------
JUDGMENT
The suit has been filed seeking for (i) 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 ''VASANTA BHAVAN'' by using the offending
Trade Mark and Trading style ''HOTEL JAIN VASANTHA BHAVAN''
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Civil Suit (Comm.Div.) No.236 of 2023
or any other mark or marks which are similar or in any way deceptively
similar to or a colorable imitation of the plaintiff's Trade Mark
''VASANTA BHAVAN''; (ii) 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 ''VASANTA BHAVAN'' by using the offending Trade
Mark and Trading style ''HOTEL JAIN VASANTHA BHAVAN'' or any
other mark or marks which are similar or in any way deceptively similar
to or a colorable imitation of the plaintiff's Trade Mark ''VASANTA
BHAVAN''; (iii) directing 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 ''HOTEL JAIN VASANTHA
BHAVAN'' and directing payment of such profits to the plaintiff by way
of damages for infringement committed by the defendant; (iv) directing
the defendant to surrender to plaintiff the entire stock of unused
offending goods with Trade Mark ''HOTEL JAIN VASANTHA
BHAVAN'' with name boards, labels, wrappers, boxes, covers, bags,
packets, cartons, bills, advertisements, materials, reports, envelops,
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Civil Suit (Comm.Div.) No.236 of 2023
brochures, printing blocks etc., bearing the offending Trademark for
destruction; and for costs.
2.1. It is the case of the plaintiff/Company that one
Late Muthukrishnan, who is the father of M.Ravi and grandfather of
Anand Krishnan, entered into the hotel business in the year 1974 under
the name and style ''VASANTA BHAVAN'' and they are running chain of
Hotels in all over the world mainly in Tamil Nadu and they are also
running restaurants along with the prefix ''Namma Veedu Vasanta
Bhavan'' also. The essential feature of the plaintiff's trademark is
''VASANTA BHAVAN''. On account of long, continuous and extensive
use of their unique trademark, tremendous amount of goodwill and
reputation had accrued in favour of the plaintiff's trademark for the past
50 years. Further, several newspapers/magazines have carried articles
about the plaintiff's Hotel and they have also invested a substantial sum
of money in order to create the awareness among the public with regard
to the high-quality hotel ''VASANTA BHAVAN''.
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Civil Suit (Comm.Div.) No.236 of 2023
2.2. It is stated that the trademark and trading style ''VASANTA
BHAVAN'' has acquired the secondary meaning to denote and connote
the product of the plaintiff, which assures the public a unique taste and
standard in the food preparations. Further, the Registrar of Trademarks,
Government of India, Mumbai had issued the certificate of registration
on 15.07.2021 for the mark ''VASANTA BHAVAN'' in the name of the
plaintiff/Company. The plaintiff has also obtained the legal usage
certificate, dated 19.04.2022 from the Trademark Registry, Intellectual
Property Building, Guindy, Chennai. It is clearly mentioned in the said
certificate that the plaintiff's trademark was used since 30.10.1974 and
the said registration is valid till 15.07.2031. It is further stated that
plaintiff has also obtained certificate of registration on 27.01.2012 for the
trademark ''NAMMA VEEDU VASANTA BHAVAN'' and also obtained
Legal usage certificate on 19.04.2022, in which, it was clearly mentioned
that the plaintiff's trademark ''NAMMA VEEDU VASANTA BHAVAN''
was used since 30.10.1974 and the said registration is valid till
27.01.2032. It is further stated that some unscrupulous traders, wanting
to take illegal advantage and enrich themselves at the popularity and
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Civil Suit (Comm.Div.) No.236 of 2023
reputation of the plaintiff, are now resorting to adopt the said trademark
and trading style '' VASANTA BHAVAN'' or ''VASANTHA BHAVAN'' or
''VASANTHAM'' for their hotels and restaurant business. Except the
plaintiff no one has any right to use the said trademark and/or trading
style.
2.3. It is the case of the plaintiff that they came to know that the
defendant is dishonestly using the mark as ''HOTEL JAIN VASANTHA
BHAVAN'', which is deceptively similar to that of the plaintiff's
trademark and trading style. The defendant adopted the identical
trademark and trading style ''HOTEL JAIN VASANTHA BHAVAN''
only to deceive the general public and to make them believe the food
preparations served at the defendant's place, has the connection with the
plaintiff's hotel and the defendant is associated with the plaintiff. The
defendant has no manner of right to adopt and use the said offending
trademark and/or trading style as ''HOTEL JAIN VASANTHA
BHAVAN''. If the defendant is allowed to continue the illegal acts in
adopting the plaintiff's celebrated trademark and vend food preparations
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Civil Suit (Comm.Div.) No.236 of 2023
under the offending trademark, the plaintiff would be put to irreparable
loss, hardship and injury. Apart from the loss, the plaintiff's also fear that
their well-earned reputation would be spoiled by the substandard foods
being served at the defendant's business premises. It is further stated that
the acts of the defendant also constitute criminal offences under the
Trademark Act, 1999.
2.4. It is the further claim of the plaintiff that the defendant has
made a clear attempt to pass-off their goods as that of the plaintiff's, by
adopting the mark ''HOTEL JAIN VASANTHA BHAVAN'', which is
visually, structurally, phonetically and deceptively identical to that of the
plaintiff's trademark ''VASANTA BHAVAN''. Hence, the plaintiff has sent
a Cease and Desist notice, dated 06.04.2023 and the same was received
by the defendant on 19.04.2022. However, the defendant neither sent a
reply notice nor had taken steps to change their hotel's name. The
defendant is infringing the plaintiff's trademark, which is not permissible
under law and hence, the plaintiff has filed the present suit for injuncting
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Civil Suit (Comm.Div.) No.236 of 2023
the defendant from using the infringing trademark ''HOTEL JAIN
VASANTHA BHAVAN''.
3. Since the defendant has not filed written statement, the
defendant was set ex-parte by this Court on 03.06.2024.
4. On the side of the plaintiff, the Authorized Signatory of the
plaintiff/Company, Mr.R.Jayaprakash, was examined as P.W.1 and he has
reiterated the averments made in the plaint and also marked 45
documents as Exs.P1 to P45.
5. Heard the learned counsel appearing for the plaintiff and
perused the materials available on record.
6. On a perusal of the plaint averments and also Proof Affidavit of
the plaintiff and documents marked on behalf of them, this Court finds
that the suit claim is proved by the plaintiff, and hence, the plaintiff is
entitled to the decree as sought for in the plaint. Accordingly, the suit is
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Civil Suit (Comm.Div.) No.236 of 2023
decreed as prayed for, with costs. Consequently, connected pending
applications, if any, are closed.
28.06.2024
Index: Yes/No
Speaking Order : Yes/No
Neutral Citation Case : Yes/No
ms
List of Witness examined on the side of the plaintiffs
R.Jayaprakash - PW1
List of documents marked on the side of the plaintiffs
SL. Exhibits DESCRIPTION OF DOCUMENTS DATED
No
1. P1 Photocopy of the Lease Deed to run 26.10.1974
the restaurant named Vasanta Bhavan
2. P2 Printout of the Paper advertisement in 30.10.1974
Dinamani of the inauguration of
plaintiff's restaurant at Egmore,
Chennai
3. P3 Photocopy of the Lease Deed to run 19.10.1979
the restaurant named Vasanta Bhavan
4. P4 Printout of the Paper advertisement in 06.04.1984
The Hindu Paper
5. P5 Photocopy of the Lease Deed to run 04.10.1984
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Civil Suit (Comm.Div.) No.236 of 2023
the restaurant named Vasanta Bhavan
6. P6 Printout of the Paper Advertisement in 15.07.1987
Maalai Malar
7. P7 Photocopy of the receipt received by 14.12.1987
Krishna Agro Industries Corporation
in the name of Vasanta Bhavan
8. P8 Photocopy of the receipt received by 15.12.1987
Krishna Agro Industries Corporation
in the name of Vasanta Bhavan
9. P9 Photocopy of the letter received by 15.12.1987
Krishna Agro Industries Corporation
in the name of Vasanta Bhavan
10. P10 Printout of the Paper Advertisement in 20.10.1989
The Hindu
11. P11 Photocopy of the Lease Deed to run 15.10.1989
the restaurant named Vasanta Bhavan
12. P12 Photocopy of the plaint filed by 02.01.1995
M.S.Tourist Homes Private Limited
13. P13 Photocopy of the Vasanta Bhavan 19.09.1997
inauguration advertisement
14. P14 Printout of the Incorporation 07.11.2003
Certificate of plaintiff
15. P15 Photocopy of the advertisement bill 10.11.2004
issued by Amudha Surabhi
16. P16 Printout of the advertisement for 01.01.2005
Vasanta Bhavan in Dinamalar
Newspaper
17. P17 Printout of the advertisement for 13.02.2005
Vasanta Bhavan in Dinamalar
Newspaper
18. P18 Printout of the Advertisement for 16.03.2005
Vasanta Bhavan in Maalai Murasu
Newspaper
19. P19 Printout of the advertisement for 17.03.2005
Vasanta Bhavan in Maalai Malar
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Civil Suit (Comm.Div.) No.236 of 2023
Newspaper
20. P20 Photocopy of the advertisement bill 17.03.2005
issued by Maalai Malar
21 P21 Printout of the advertisement for 13.04.2005
Vasanta Bhavan in Maalai Murasu
Newspaper
22 P22 Photocopy of the advertisement bill 13.04.2005
issued by Maalai Murasu
23. P23 Printout of the advertisement for 18.04.2005
Vasanta Bhavan in Maalai Murasu
Newspaper
24. P24 Photocopy of the advertisement bill 18.04.2005
issued by Maalai Murasu
25. P25 Printout of the advertisement for 24.03.2005
Vasanta Bhavan in Maalai Murasu
Newspaper
26. P26 Photocopy of the advertisement bill 24.03.2005
issued by Maalai Murasu
27. P27 Photocopy of the advertisement bill 19.05.2005
for Vasanta Bhavan in Maalai Murasu
Newspaper
28. P28 Printout of the advertisement for 25.05.2005
Vasanta Bhavan in Maalai Murasu
Newspaper
29. P29 Photocopy of the advertisement bill 25.05.2005
issued by Maalai Murasu
30. P30 Printout of the advertisement for 02.07.2005
Vasanta Bhavan in The Hindu
Newspaper
31. P31 Printout of the advertisement for the
plaintiff Hotel dated 2005
32. P32 Printout of the advertisement for the
plaintiff Hotel dated 2005
33. P33 Photocopy of the certificate issued in 23.01.2018
the name of the plaintiff by Tamil
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Civil Suit (Comm.Div.) No.236 of 2023
Nadu Food Safety and Drugs and
Administration Department
34. P34 Printout of the ISO Certificate issued 22.08.2018
in the name of Vasanta Bhavan
35. P35 Photocopy of the Trademark 23.12.2021
Registration Certificate in the name of
Vasanta Bhavan
36. P36 Board Resolution 06.06.2024
37. P37 Printout of the Legal usage Certificate 19.04.2022
in the name of Vasanta Bhavan
38. P38 Printout of the Legal usage Certificate 19.04.2022
in the name of Namma Veedu Vasanta
Bhavan
39. P39 Photocopy of the Certificate issued by 08.08.2022
the Chartered Accountant with regard
to the turnover from 2003 to 2021
40. P40 Photocopy of the Cease and Desist 06.04.2023
notice sent by the plaintiff to the
defendant
41. P41 Photocopy of the Inauguration Photo
of the plaintiff Hotel by Actor
Rajinikanth
42. P42 Photocopy of the plaintiff Hotel
''Vasanta Bhavan'' by politicians,
celebrities and businessman
43. P43 Printout of the photograph of the
plaintiff Hotel
44. P44 Printout of the photograph of the
defendant Hotel
45. P45 Photocopy of the Comparison chart of
plaintiff and defendant Hotel.
28.06.2024
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Civil Suit (Comm.Div.) No.236 of 2023
P.VELMURUGAN, J
ms
C.S.(Comm.Div.)No.236 of 2023
28.06.2024
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