Judgment :- O.A. No.741 OF 2010:- Original Application praying that this Hon’ble Court be pleased to grant an ad interim injunction restraining the Defendant, their proprietor/partner, men, distributors, stockists, servants, agents, retailers, representatives or any other person claiming under them from in any manner manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in goods marked “KUMARAN” or under the trading style KANCHI KUMARAN SILKS OR otherwise, identical or deceptively similar under the Trade Mark “KUMARAN” carrying relative artistic work of any other trademark/trading style resembling the plaintiff’s registered trade marks “KUMARAN” And/or SRI KUMARAN STORES which is identical or deceptively similar to the plaintiff’s registered trade marks so as to infringe the Trade Marks of the Plaintiff or in any other manner whatsoever pending disposal of the above suit. O.A.NO.745 OF 2010:- Original Application praying that this Hon’ble Court be pleased to grant an ad interim injunction restraining the Respondent/Defendant, their proprietor/partner, men, distributors, stockists, servants, agents, retailers, representatives or any other person claiming under them from in any manner manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in goods marked “KUMARAN” SILKS or otherwise, identical or deceptively similar under the Trade Mark “KUMARAN” carrying relative artistic work or any other trademark/trading style resembling the plaintiff’s registered trade marks “KUMARAN” and / or SRI KUMARAN STORES which is identical or deceptively similar to the plaintiff’s registered trade marks so as to pass off/enable passing off of the goods of the defendant as and for that of the Plaintiff pending disposal of the above suit. These Original Applications coming on this day before this court for hearing the Court made the following order: O.A.No.741 of 2010 has been filed to grant an ad interim injunction against the defendant, their proprietory/partner, men, distributors, stockists, servants, agents, retailers, representatives or any other person claiming under them from in any manner manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in goods marked ‘KUMARAN’ or under the trading style KANCHI KUMARAN SILKS or otherwise, identical or deceptively similar under the Trade Mark ‘KUMARAN’ carring relative artistic work or any other trademark/trading style resembling the plaintiff’s registered trade marks ‘KUMARAN’ and/or SRI KUMARAN STORES which is identical or deceptively similar to the plaintiff’s registered trade marks so as to infringe the Trade Marks of the plaintiff or in any other manner whatsoever pending disposal of the above suit. 2. O. A. No. 745 of 2010 has been filed to grant an ad interim injunction restraining the respondent/defendant, their proprietory/partner, men, distributors, stockists, servants, agents, retailers, representatives or any other person claiming under them from in any manner manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in goods marked ‘KUMARAN’ or under the trading style KANCHI KUMARAN SILKS or otherwise, identical or deceptively similar under the Trade Mark ‘KUMARAN’ carring relative artistic work or any other trademark/trading style resembling the plaintiff’s registered trade marks ‘KUMARAN’ and/or SRI KUMARAN STORES which is identical or deceptively similar to the plaintiff’s registered trade marks so as to pass off/enable passing off of the goods of the defendant as and for that of the plaintiff pending disposal of the above suit. 3. These two applications have been filed by the plaintiff in C. S. No. 608 of 2010. 4. 3. These two applications have been filed by the plaintiff in C. S. No. 608 of 2010. 4. C.S. No. 608 of 2010 has been filed by the plaintiff/the applicant herein for the following prayers: (a) Granting perpetual injunction restraining the defendant, their proprietory/partner, men, distributors, stockists, servants, agents, retailers, representatives or any other person claiming under them from in any manner manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in goods marked ‘KUMARAN’ or under the trading style KANCHI KUMARAN SILKS or otherwise, identical or deceptively similar under the Trade Mark ‘KUMARAN’ carring relative artistic work or any other trademark/trading style resembling the plaintiff’s registered trade marks ‘KUMARAN’ and/or SRI KUMARAN SORES which is identical or deceptively similar to the plaintiff’s registered trade marks so as to infringe the Trade Marks of the plaintiff or in any other manner whatsoever; (b) Granting perpetual injunction restraining the defendant, their proprietory/partner, men, distributors, stockists, servants, agents, retailers, representatives or any other person claiming under them from in any manner manufacturing, selling offering for sale, stocking, advertising directly or indirectly dealing in goods marked ‘KUMARAN’ or under the trading style KANCHI KUMARAN SILKS or otherwise, identical or deceptively similar under the Trade Mark ‘KUMARAN’ carring relative artistic work or any other trademark/trading style resembling the plaintiff’s registered trade marks ‘KUMARAN’ and/or SRI KIMARAN STORES which is identical or deceptively similar to the plaintiff’s registered trade marks so as to pass off/enable passing off of the goods of the defendant as and for that of the plaintiff. (c) Directing the defendant to deliver, to the plaintiff all the products, preparations, dies, blocks, articles, literatures, advertisements, letterheads, key chain, stickers, cartons, labels, papers, polythene bags, other bags and all other objects bearing and containing the trade mark and/or trading style deceptively similar to the plaintiff which are in the defendants possession or to the authorized representative of the plaintiff or destruction; (d) To pass a Preliminary Decree in favour of the plaintiff directing the Defendant to render accounts of profits made by them by use of the impugned trade marks and/or trading style or other similar marks thereof and a final decree be passed in favour of the plaintiff for the amount of profits found to have been earned by the Defendants, after the latter has rendered accounts; (e) For liquidated damages of Rs.30,00,000/- (Rupees Thirty Lakhs only) payable by the defendant to the plaintiff in respect of the unlawful act of infringement of registered Trademarks of the plaintiff. 5. Pending suit, these two applications have been filed for seeking interim prayers as aforesaid. 6. The case of the plaintiff is as follows: The plaintiff claims that one P.Chengalvaraya Chetty established two firms i.e. SRI KUMARAN STORES and KUMARAN SILKS and each of them were given to his two sons namely P.C.Jeyaraman and P.C. Ramamoorthy. One such firm Sri Kumaran Stores is the plaintiff in the suit which is a registered partnership firm. According to the plaintiff, the trade mark “Kumaran” has been used by the plaintiff from the year 1955 in respect of Sarees, Textile piece goods, Readymade garments and other textile items. The trade mark “Sri Kumaran Stores’ bearing Registration No. 532177 was registered in Class 25 on 26.06.1990 and the other trade mark ‘Kumaran’ bearing No.543398, word perse was registered in class 54 on 24.11.1991. There has been re-constitution of the partners and the plaintiff is a partnership firm duly registered. The plaintiff is the owner of Copy Right in their original artistic work, ‘Sri Kumaran Stores’. The goods and trade mark are being sold and advertised through their various family firms namely ‘Sri Kumaran Stores’, ‘Kumaran Fabrics’, ‘Kumaran Silk Traders’, ‘Kumaran Fashions’ containing the essential expression ‘Kumaran’. Thus, the expression ‘Kumaran’ has always been associated with the textiles more particularly Silk Sarees with ‘Kumaran’ Trade Mark since 1955. In fact, the sarees sold by the plaintiff are referred as ‘Kumaran Silks’. Thus, the expression ‘Kumaran’ has always been associated with the textiles more particularly Silk Sarees with ‘Kumaran’ Trade Mark since 1955. In fact, the sarees sold by the plaintiff are referred as ‘Kumaran Silks’. The expression ‘Kumaran’ has achieved its own popularity and brought higher reputation to the plaintiff. The extensive advertisements by the plaintiff of their trade mark ‘Kumaran’ have also widely been known and accepted by the public. Besides that, the tremendous sales turnover achieved and the advertisement expenses incurred by the plaintiff with the expression ‘Kumaran’ would establish the goodwill and the reputation achieved by the plaintiff. In respect of ‘Kumaran Stores’, the sales turnover and the advertisement expenses, as shown by the plaintiff in the plaint would prove their reputation and goodwill. 7. While so, the respondent/defendant is using the trade mark “Kanchi Kumaran Silks” and selling the silk sarees through their outlets. The similarity of the names excepting the prefixing of the word “Kanchi” is otherwise the lavish imitation of the applicant/plaintiff’s registered trade mark, which, they have been owning and nurturing for over fifty years. Besides that, the word ‘kanchi’ is expressed in a similar font to solely mislead and misguide the customers, as if the outlet of the respondent/defendant belongs to the applicant/plaintiff. Therefore, a cease and dessist notice was issued by the applicant/plaintiff on 12.05.2010 to the respondent/defendant and the same was replied by them on 18.05.2010 refusing to cease and desist from using the trade mark of the applicant/plaintiff. Therefore, pending suit, the above two applications have been filed by the plaintiff to restrain the respondent/defendant from the unlawful act of infringement of their registered trade mark and civil tort of passing off. Notice was ordered by this Court and the respondent/defendant entered appearance through counsel and filed a common counter affidavit in respect of the above two applications. 8. The respondent/defendant while denying all the allegations and averments made by the applicant/plaintiff, would state that the suit itself is an abuse of court. They would further add that the applicant/plaintiff has not come to the Court with clean hands and therefore, they are not entitled to any equitable and discretionary relief. It is their case that, they have been carrying on business under the name of ‘Kanchi Kumaran Silks’ at No.74, P.S.K.Street, Kanchipuram – 631 501 since 2005 and they have an annual turnover of Rs.2.83 Crores. It is their case that, they have been carrying on business under the name of ‘Kanchi Kumaran Silks’ at No.74, P.S.K.Street, Kanchipuram – 631 501 since 2005 and they have an annual turnover of Rs.2.83 Crores. They are also registered member of ‘Silk Board’ from 08.06.2006 and an authorized user of silk marks. They are also assessed for ISO 90012008 for manufacture, procurement of the sale of Handloom silk sarees and cotton sarees. According to them, they have never copied the artistic work of the plaintiff ‘Sri Kumaran Silks’. They added that their reputation is independent to that of the applicant/plaintiff and there is no question of encashing the goodwill of the applicant/plaintiff. The suit itself has arisen out of the trade rivalry and jealous. 9. The respondent/defendant would further state that the plaintiff has been carrying on business only in Chennai, that too, ‘Sri Kumaran Stores’ originally at T.Nagar and subsequently opened two other shops in T.Nagar itself. Thee is no resemblance in the trade mark and therefore. There is no question of similarity as claimed by the applicant/plaintiff. Phonetically ‘Sri Kumaran Silks’ and ‘Kanchi Kumaran Silks’ are not similar and would not create any confusion in the minds of the purchasers as the marks are totally different. Thus, there is absolutely no confusion as alleged by the applicant/plaintiff. 10. Further, the suit itself is not maintainable for the reason that the reconstituted partnership firm of the applicant/plaintiff is not a registered one and there is a statutory bar under Section 69(2) of the Partnership Act. Besides that, the respondent/defendant would add that the work ‘Kumaran’ is a commonly used work and it is a generic name and publici juris and on which no one can claim exclusive right over the word ‘Kumaran’, as the word literally means and refers to the Tamil God ‘Murugan’. The respondent/defendant further states that these textile goods namely the piece goods which are textile goods as defined under Rule 173 of Textile Marks and the textile goods have been defined under Rule 142 and 144. The classification of goods and services are detailed under Schedule IV and Class 24 deals with Textile and Textile goods not included other clauses and Bed and Table covers and Schedule V Class 65 deals with Pure Silk Sarees. It is their case that the applicant/plaintiff have not registered their silk sarees under Schedule V Class 65. The classification of goods and services are detailed under Schedule IV and Class 24 deals with Textile and Textile goods not included other clauses and Bed and Table covers and Schedule V Class 65 deals with Pure Silk Sarees. It is their case that the applicant/plaintiff have not registered their silk sarees under Schedule V Class 65. Therefore, the applicant/plaintiff have not registered the Silk Sarees under the above provisions and hence, they are not registered owners of the mark and cannot seek relief of infringement. 11. Besides this, the applicant/plaintiff had opened up their branch at Kanchipuram only during 2010, whereas the respondent/defendant has been doing the business at Kanchipuram since 2005. The respondent/defendant are having their own weaving centres and sarees are woven and sold through ‘Kanchi Kumaran Silks’. Therefore, in so far as Kanchipuram is concerned, the respondent/defendant is a prior user having established their business in the year 2005. Therefore, the respondent/defendant denies the allegation as there is a loss of business for the plaintiff. The respondent/defendant also raised the question of jurisdiction, as there is no cause of action for filing this suit before this Court and in the plaint, it was not mentioned anywhere that the plaintiff had opened their outlet at Kanchipuram. No invoice or bill was produced from the Kanchipuram outlet by the applicant/plaintiff. 12. I have heard the learned counsel appearing for the applicant/plaintiff and the learned counsel Mr. R. Thiagarajan representing the counsel for the respondent/defendant. I have also gone through the documents made available on record. 13. The point that arises for consideration is as follows: Whether the plaintiff is entitled to the grant of interim injunction as prayed for? 14. With regard to the contention of the learned counsel for the applicant/plaintiff that the respondent/defendant had committed an act of infringement and passing off of the trade mark ‘Kumaran Stores’, it is useful to refer to Section 29 of the Trade Marks Act, which deals with the infringement of registered trade marks. Section 29 is extracted below for better appreciation. 29. Section 29 is extracted below for better appreciation. 29. Infringement of registered trade marks.- (1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of – (a) its identify with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or (b) its similarity to the registered trade mark and identify or similarity of the goods or services covered by such registered trade mark; or (c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public. Is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. 15. The conflicting marks in the case in hand is similar and identical. The applicant/plaintiff’s mark is being a registered mark, the same is entitled for protection under Section 29(2) of the Act. There is also a possibility of the end-consumer to mistake the identity of the origin of the respondent/defendant with that of the applicant/plaintiff. The plaintiff’s registered trade mark is ‘Kumaran Silks’ and the respondent/defendant/s mark is ‘Kanchi Kumaran Silks’. In both the marks, the catchy word is ‘Kumaran’ and this word ‘Kumaran’ in both the trade marks which deal with the same product would certainly cause confusion in the minds of the end-consumers. The plaintiff’s registered trade mark is ‘Kumaran Silks’ and the respondent/defendant/s mark is ‘Kanchi Kumaran Silks’. In both the marks, the catchy word is ‘Kumaran’ and this word ‘Kumaran’ in both the trade marks which deal with the same product would certainly cause confusion in the minds of the end-consumers. Therefore, it has to be held that pending suit, an injunction has to be granted in favour of the plaintiff, as I find a prima-facie case, availability of balance of convenience and suffering of an irreparable injury if injunction is not granted. 16. With regard to the question whether the applicant/plaintiff registered their silk sarees under Schedule IV in Class 24 and Schedule V under Class 65 can claim ownership of the registered trade mark ‘Sri Kumaran Silks’, it is useful to refer to Section 2(a) & (b) of the Trade Marks Act wherein the trade mark is defined as ‘mark capable of being distinguishing the goods or services of one person from those of others’. From the documents filed on the side of the applicant/plaintiff, it would be seen that they have registered the trade mark ‘Sri Kumaran Stores’ bearing No.532177 on 26.06.1990. Similarly, the trade mark ‘Kumaran’ bearing the No.543398 has been registered on 24.11.1991. Advertisement has been made in the Trade Mark Journal in the name of ‘Sri Kumaran Silks’ and claiming the trade mark since 1955. On 28.02.1991, the applicant/plaintiff have registered their copy right ‘Sri Kumaran Silks’. On 01.04.1994, the partnership deed ‘Sri Kumaran Silks’ has been executed to carry on business in the name of ‘Sri Kumaran Silks’. On 24.06.1994, the trade mark device ‘Sri Kumaran Silks’ has been registered in the name of the proprietor Sri P.C.Jeyaraman whereas the documents produced on the side of the respondent/defendant, the same would show that the respondent/defendant has been doing business under the name and style of ‘Sri Balaji Silks Fashion’ having their main office at Chennai and branch at Kanchipuram. The partnership firm was taken over by the respondent/defendant as seen from the Balance Sheets filed by the defendant. The certificates produced by the respondent/defendant with regard to the partnership with the ‘Silk Marks Organisation of India’, TNGST, CST Forms, VAT Forms, all would show the period after June 2006. The partnership firm was taken over by the respondent/defendant as seen from the Balance Sheets filed by the defendant. The certificates produced by the respondent/defendant with regard to the partnership with the ‘Silk Marks Organisation of India’, TNGST, CST Forms, VAT Forms, all would show the period after June 2006. Though they had produced the bill/invoice dated 12.12.2005, as pointed out by the applicant/plaintiff that in the bill dated 12.12.2005, one N.V.Selvi has signed for ‘Kanchi Kumaran Silks’ in the bill dated 11.10.2010. In the same manner, it is mentioned in the financial statement ‘S. Bagyalakshmi’ as Proprietorix of the respondent/defendant’s business, the business of ‘Sri Bagyalakshmi’s Fashion’ was ceased and the business under the name of “kanchi Kumaran Silks’ was started on 11.12.2005. 17. Though the learned counsel appearing on either side referred to a number of judgments to press their point, I am of the view that all those judgments and authorities have laid down well established principles of law on the facts and circumstances of these cases and there is no dispute with regard to those decisions. 18. In so far as the Interim Applications filed by the applicant/plaintiff are concerned, the question is whether there is a prima-facie case and the balance of convenience in favour of the applicant/plaintiff. The applicant/plaintiff has been the prior user of the registered trade mark from 1955 and the respondent/defendant on the other hand is a new entrant to the business in the year 2006 only and their marks are deceptively similar and the goods of trade are one and the same. Therefore, I am prima-facie satisfied that the applicant/plaintiff is entitled to an order of injunction as prayed for in the above two applications. 19. Accordingly, injunction is granted in both the applications. It is made clear that the observations made by me in this order are only for the purpose of disposing of the applications and it is open to the respondent/defendant to agitate all the issues including the issue of jurisdiction, maintainability of the suit, etc., at the time of trial. 20. In the result, O.A.Nos.741 and 745 of 2010 are allowed. No costs.