Registered proprietor of the trademark AMBUR STAR BRIYANI sued a restaurant using STAR AMBUR BRIYANI for infringement and passing off. The defendant did not appear. The court found the suit claim proved on ex-parte evidence and decreed injunctions against infringement and passing off with costs.
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C.S.(COMM DIV) No.172 of 2024
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.12.2024
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.S.(COMM DIV) No.172 of 2024
Mr. M. Anees Ahmed Sole Proprietor, M/s Ambur Star Briyani, Having its office at No. 116/1, Arcot Road, Vadapalani, Chennai – 600 026. .... Plaintiff vs Star Ambur Briyani, M.C. Road, Ambur, Tamil Nadu - 635 802. .... Respondent
PRAYER : PLAINT UNDER ORDER VII RULE 1 OF CPC READ WITH ORDER IV RULE 1 OF HIGH COURT O.S. RULES AND SECTION 134 AND SECTION 135 OF THE TRADE MARKS ACT, 1999 for the following reliefs :-
a) Granting a 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 "AMBUR STAR BRIYANI" by using the offending Trade Mark and Trading style "STAR AMBUR BRIYANI" or any other mark or marks which are similar or in any way deceptively similar to or a colorable imitation of the Plaintiffs Trade Mark "AMBUR STAR BRIYANI”
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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 "AMBUR STAR BRIYANI” by using the offending Trade Mark and Trading style “STAR AMBUR BRIYANI” or any other mark or marks which are similar or in any way deceptively similar to or a colorable imitation of the Plaintiffs Trade Mark “AMBUR STAR BRIYANI”.
c) Directing the Defendant to surrender the Plaintiff the entire stock of unused offending goods with Trade Mark "STAR AMBUR BRIYANI” 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.
d) Directing to the Defendant to pay the Plaintiff the costs of the suit
For Plaintiff : Mr.Vijayan Subramanian
JUDGMENT
The suit has been filed for infringement and passing off.
“AMBUR STAR BRIYANI” . The plaintiff claims that they are having
several restaurants all over India as well as in abroad under the name & style of “AMBUR STAR BRIYANI” . In the plaint, they have disclosed
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of
the details of various restaurants run by them under the name and style
of “AMBUR STAR BRIYANI” . In the plaint, they have also disclosed the trademark registrations obtained by the plaintiff for their trademark “AMBUR STAR BRIYANI” under class 43. A device of the plaintiff's trademark has also been registered under the Trademarks Act. The plaintiff claims that they came to know recently that the defendant has adopted the plaintiff's trademark by using its tradename as STAR AMBUR BRIYANI. According to the plaintiff through their long usage of the registered trademark “AMBUR STAR BRIYANI” , they have acquired distinctiveness for their trademark and the said trademark is exclusively associated only with them. The plaintiff has also issued a cease and desist notice to the defendant calling upon them not to use the name STAR AMBUR BRIYANI for their restaurant as it is deceptively similar to the plaintiff's trademark “AMBUR STAR BRIYANI” . However according to the plaintiff despite the same, the defendant continues to use the name STAR AMBUR BRIYANI for their restaurant at Ambur. The learned counsel for the plaintiff has stated that the reply sent by the defendant to the cease and desist is an untenable reply. The suit summons was served to the defendant, but despite the same, they
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have chosen not to enter appearance in the suit. They have been set exparte by this Court on 04.12.2024. Thereafter the plaintiff has recorded the ex-parte evidence. The plaintiff's Proprietor Mr.M.Anees Ahmed has been examined as a witness on the side of the plaintiff before the Additional Master III of this Court. A proof affidavit has also been filed by the said Anees Ahmed (PW1) in support of the plaint averments.
Anandha Vikatan about Star Briyani.
dated 15.03.2006.
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labour Department dated 19.03.2003.
issued by the Commercial Tax Officer dated 04.05.2005.
issued by the Department of Industries and Commerce dated 12.10.2008.
issued by the Fire and Rescue Service Department dated 23.02.2009.
Registration issued by Commercial Tax Department dated 16.10.2012.
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Registration issued by Commercial Tax Department dated 16.10.2012.
issued by the Department of Industries and Commerce dated 04.11.2013.
the Department of Industries and Commerce dated 04.11.2013.
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for the present assessment year dated 14.09.2020.
Certificate dated 19.09.2020.
certificate dated 16.07.2022.
OA.No. 1009 and 1010 of 2019 in CS.(Com.Div) No.648 of 2019 dated 11.11.2019.
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OA.No.581 and 582 of 2023 in CS (Com.Div), No. 162 of 2023 dated 27.06.2023.
No.28 and 30 of 2024 in CS (Cam.Div). No. 12 of 2024 dated
12.01.2024
Defendant Hotel
is clear that the plaintiff is the registered Proprietor of the trademark
“AMBUR STAR BRIYANI”. The plaintiff in the plaint has also given
details as to how the trademark “AMBUR STAR BRIYANI” came to
be associated with the plaintiff. Several exhibits have been marked on 8/11
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the side of the plaintiff to prove the plaintiff's credentials with regard to their trademark “AMBUR STAR BRIYANI” . The plaintiff has also filed exhibits which contains the permissions / licences obtained from various statutory authorities for their restaurants to use their trading style as “AMBUR STAR BRIYANI” . The trademark registration certificate standing in the name of the plaintiff for their trademark “AMBUR STAR BRIYANI” , dated 01.08.2018 has also been marked as Ex.P18. The legal usage certificate in respect of the plaintiff's trademark “AMBUR STAR BRIYANI”, dated 26.06.2023 has also been marked as Ex.P20. On the side of the plaintiff certain other exhibits have also been marked viz., orders passed by this Court in respect of other infringement suits filed by the plaintiff involving the very same trademark “AMBUR STAR BRIYANI” . The photographs of the plaintiff's hotel and the defendant's hotel have also been marked as exhibits on the side of the plaintiff viz., Exs.P32 and P33 respectively. A comparison chart of the plaintiff and the defendant hotel has also been marked as Ex.P34 on the side of the plaintiff. As seen from Exs.P32, P33 and P34, it is clear that the defendant by using the name STAR AMBUR BRIYANI for their restaurant at Ambur has copied the
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plaintiff's trademark “AMBUR STAR BRIYANI” and its trading style and trade dress.
the documents marked as Exhibits on the side of the plaintiff through PW1, this Court is of the considered view that the suit claim has been proved by the plaintiff as prayed for. Accordingly, the suit is decreed insofar as prayer (a) & (b) of paragraph No.31 of the plaint are concerned. Since the plaintiff has not produced any evidence before this Court to prove that the infringing materials are still available with the defendant, the prayer (c) in paragraph 31 of the plaint is rejected by this Court. However, since the defendant has infringed the plaintiff's trademark, the defendant is liable to pay costs to the plaintiff. Accordingly, the suit is decreed as prayed for in favour of the plaintiff insofar as (a) & (b) of the plaint are concerned and insofar as (c) is concerned, the same is rejected and the suit is partly decreed with costs.
18.12.2024
Index: Yes/ No Speaking order / Non speaking order Neutral citation : Yes / No vsi2
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ABDUL QUDDHOSE, J.
vsi2
C.S.(COMM DIV) No.172 of 2024
18.12.2024
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1 issue framed by the court
Whether the plaintiff proved its registered trademark 'AMBUR STAR BRIYANI' and the defendant's infringement and passing off by using 'STAR AMBUR BRIYANI'.
3 provisions across 2 enactments
Mr. M. Anees Ahmed, Sole Proprietor, M/s Ambur Star Briyani
Star Ambur Briyani
Abdul Quddhose
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
