JUDGMENT (Prayer: Plaint filed under Order IV Rule 1 of the O.S.Rules And Order VII Rule 1 of CPC Read With Sections 27, 134 and 135 of the Trademarks Act 1999 & Proviso 1 to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 prayed for Judgment and Decree:- (a) A permanent injunction restraining the defendant, themselves, its partners / proprietor as the case may be, successors-in-business, servants, heirs, servants, agents, representatives and all other persons claiming under them and through them from in any manner providing services, displaying, advertising in all form of media and through Internet, under the trade name / trading style KARAIKUDI CHETTINADU MESS in respect of hotel, restaurant and hospitality service or other allied and cognate service / goods amounting to infringement of the plaintiff's registered trademarks KAARAIKUDI and KAARAIKUDI CHETTINADU RESTAURANT or as being in some way connected with the plaintiff and / or in any manner whatsoever; (b) A permanent injunction restraining the defendant, themselves, its partners / proprietor as the case may be, successors-in-business, servants, heirs, servants, agents, representatives and all other persons claiming under them and through them from passing off and enabling others to pass off defendant's restaurants and business as and for plaintiff's restaurants and business by use of service mark / trade name KARAIKUDI CHETTINADU MESS or any name / mark similar to plaintiff's services mark / trade name KAARAIKUDI CHETTINAD RESTAURANT or in any other manner whatsoever; (c) The defendant be ordered to pay to the plaintiff a sum of Rs.1,00,000/- as damages for committing infringement of trademarks and passing off its products as and for the plaintiff's products or services; (d) The defendant be ordered to surrender to the plaintiff for destruction, name boards, invoices / bills, prints, dies, blocks, molds and plates, screen prints, cylinders, packing and advertising material and any other material in the defendant's possession, which bears the service mark / trade name KARAIKUDI CHETTINAD MESS; (e) A preliminary decree be passed in favour of the plaintiff directing the defendant to render account of profits made by use of the almost identical service mark / trade name KARAIKUDI CHETTINAD MESS amounting to infringement of the plaintiff's registered trademarks and / or passing off and a final decree be passed in favour of the plaintiff for the amount of profits thus found to have been made by the defendant after the latter have rendered accounts; (f) For entire costs of the suit.) 1. The suit in C.S.(Comm.Div.)No.28 of 2021 was filed seeking relief in respect of alleged infringement of the plaintiff's registered trademark KAARAIKUDI and KAARAIKUDI CHETTINAD RESTAURANT by use of the impugned mark KARAIKUDI CHETTINAD MESS and for passing off. C.S.(Comm. Div)No.29 of 2021 was also filed seeking identical relief. The only difference was that the defendant in C.S.(Comm. Div)No.29 of 2021 was described as KARAIKUDI CHETTINADU MESS instead of KARAIKUDI CHETTINAD MESS and the addresses were different. The defendant filed separate written statements in these suits stating that the common defendant is KARAIKUDI CHETTINADU MESS PRIVATE LIMITED, represented by its Director, Selvaraj Manigandan, and carrying on business at No.160, GST Road, Chrompet, Chennai. In both suits, the defendant also asserted in the written statement that the plaintiff's marks KAARAIKUDI and KAARAIKUDI CHETTINAD RESTAURANT are not distinctive and therefore not entitled to protection. Therefore, both suits are disposed of by a common judgment. 2. Learned counsel, who appeared for the defendant then, stated, at the hearing on 21.04.2022, that he had no instructions. Therefore, the Registry was directed to print the name of the defendant instead of the name of counsel and the matter was listed on 09.06.2022. Since there was no representation for the defendant on 09.06.2022, the matter was adjourned to 16.06.2022 in order to provide a further opportunity to the defendant. Because there was no representation for the defendant on 16.06.2022, the defendant was set ex parte. 3. Based on the pleadings and the draft issues of the plaintiff, the following issues were framed: 1. Whether the trademarks KAARAIKUDI and KAARAIKUDI CHETTINADU are distinctive and entitled to protection under the Trade Marks Act 1999? 2. Whether the plaintiff's trademarks and the impugned marks of the defendant are phonetically, structurally or ocularly identical or deceptively similar? 3. Whether the plaintiff is entitled to a permanent injunction in respect of the alleged trademark infringement? 4. Whether the plaintiff is entitled to relief in respect of alleged passing off? 5. Whether the plaintiff is entitled to a sum of Rs.1,00,000/- or a part thereof as damages? 6. Whether the plaintiff is entitled to a preliminary decree for rendition of accounts and a final decree of profits determined on such basis? 7. Whether the plaintiff is entitled to any other relief? 4. The plaintiff examined Duvvur Rami Reddy, its authorized representative, as P.W.1. 6. Whether the plaintiff is entitled to a preliminary decree for rendition of accounts and a final decree of profits determined on such basis? 7. Whether the plaintiff is entitled to any other relief? 4. The plaintiff examined Duvvur Rami Reddy, its authorized representative, as P.W.1. In course of the examination in chief of P.W.1, 10 documents were exhibited as Exs.P1 to P10. The same documents were exhibited in both suits. Oral arguments were addressed on behalf of the plaintiff by Ms. P. Chandini, learned counsel. Issue No.1: 5. The first issue pertains to whether the trademarks KAARAIKUDI and KAARAIKUDI CHETTINADU are distinctive and entitled to protection under the Trade Marks Act, 1999 (the Trade Marks Act). Because the plaintiff's registered trademarks are KAARAIKUDI and KAARAIKUDI CHETTINAD RESTAURANT, the issue is recast as follows: Whether the trademarks KAARAIKUDI and KAARAIKUDI CHETTINAD RESTAURANT are distinctive and entitled to protection under the Trade Marks Act, 1999? The plaintiff asserted that these marks are being used in relation to its restaurant business from the year 1989. In paragraph 7 of the plaint, the sales turnover of the plaintiff's restaurants bearing the mark KAARAIKUDI CHETTINAD RESTAURANT from the financial years 1989 - 1990 to 2020 - 2021 was set out. In paragraph 8 of the plaint, the sales promotional details from the financial years 2000 - 2001 to 2020 - 2021 was set out. The defendant pleaded, in the written statement, that the marks were not distinctive and therefore not entitled to protection. Therefore, this aspect should be examined. Apart from the sales turnover and promotional expenditure, the plaintiff exhibited its trademark registration certificate in relation to the word mark KAARAIKUDI as Ex.P2. On examination, it is evident that the registration is with effect from 16.03.2006 but the certificate indicates use from 01.04.1989. It is also noticeable that it is a word mark registration. The plaintiff also exhibited the registration in respect of the device mark KAARAIKUDI CHETTINAD RESTAURANT as Ex.P3. This certificate evidences that the registration is with effect from 19.02.2004 and specifies that use is from 21.04.1989. The registration of the word mark is in class 29, 30 and 42 and the device mark registration is in class 42. The corresponding legal user certificates are exhibited as Exs.P4 and P5. This certificate evidences that the registration is with effect from 19.02.2004 and specifies that use is from 21.04.1989. The registration of the word mark is in class 29, 30 and 42 and the device mark registration is in class 42. The corresponding legal user certificates are exhibited as Exs.P4 and P5. In addition, the plaintiff exhibited invoices of Amaravathi Restaurants Private Limited (Ex.P6) and a certificate of broadcast from Suryan FM Radio as regards the KAARAIKUDI Restaurant as part of Ex. P7. 6. Based on the above evidence, it is clear that the plaintiff has used both the word mark KAARAIKUDI and the device mark KAARAIKUDI CHETTINAD RESTAURANT for a considerable period of time. A trademark may be distinctive by nature or it may acquire distinctiveness through nurture. Both the mark KARAIKUDI and the device mark KAARAIKUDI CHETTINADU RESTAURANT are marks classifiable as descriptive marks. Therefore, they are not inherently distinctive. Nonetheless, evidence of use from the year 1989 has been adduced by the plaintiff and the plaintiff has also provided details of its sales turnover and promotional expenses. On account of long use, in the absence of evidence to contradict, there is sufficient basis to conclude that the mark has acquired distinctiveness as regards the plaintiff's restaurant business. Issue No.1 is therefore decided in favour of the plaintiff and against the defendant. Issue No.2: 7. Issue No.2 relates to whether the plaintiff's trademarks and the impugned mark of the defendant are phonetically, structurally or ocularly identical or deceptively similar. In order to determine this issue, it is necessary to compare the plaintiff's mark with the defendant's. The defendant's mark was exhibited as Ex.P10. The defendant uses the mark KARAIKUDI CHETTINADU MESS. On comparison with the plaintiff's word mark, it is evident that the word KARAIKUDI is common to both marks, albeit there is an extra “a” in the plaintiff's registered mark. Similarly, when the plaintiff's registered device mark KAARAIKUDI CHETTINAD RESTAURANT is compared with the impugned mark, apart from the extra “u” at the end of the defendant's mark, the difference is that the generic term “RESTAURANT” is replaced by the generic term “MESS”. Hence, without doubt, the impugned mark of the defendant is phonetically, structurally and visually similar. Issue Nos. 3-7: 8. The remaining issues pertain to remedies prayed for and are dealt with jointly. Hence, without doubt, the impugned mark of the defendant is phonetically, structurally and visually similar. Issue Nos. 3-7: 8. The remaining issues pertain to remedies prayed for and are dealt with jointly. Since it is concluded that the marks are deceptively similar, the plaintiff is entitled to the remedies of injunction both in respect of infringement and passing off. As regards the relief of passing off, it should be noticed that the parties are engaged in near-identical businesses and the plaintiff has established goodwill and reputation by adducing evidence of turnover and promotional expenses. It should also be bound in mind that the defendant has failed to adduce any contra evidence. The plaintiff is also entitled to the consequential remedy of surrender of infringing materials for destruction Although the plaintiff prayed for damages, no evidence was adduced in such regard and the said claim [prayer (c)]is rejected. As regards rendition of accounts, in the absence of the defendant, it is not possible to call for accounts, compute profits and direct payment of additional Court fee. Therefore, prayer (e) is rejected. The plaintiff is also entitled to costs on the loser pays principle. 9. In the result, both suits are disposed of by a decree in terms of prayers (a), (b) and (d) of paragraph 22 of the plaint in C.S.(Comm.Div)No.29 of 2021. In addition, the defendant is directed to pay a sum of Rs.1,50,000/- (Rupees One lakh Fifty thousand only) as costs collectively for both suits towards Court fees, reasonable lawyer's fees and expenses. Consequently, A.Nos.2564 & 2577 of 2021 are closed.