ARUN CHOPRA Vs. KAKA KA DHABA PVT. LTD.

JUDGEMENT

(1.) I.A. 15056/2016 in CS (COMM) 728/2018

(2.) The plaintiff has filed the present suit on 06.03.2014 alleging infringement of his registered trademark "K-D-H KAKE-DAHOTEL" by the defendants' use of the mark "KAKA-KA DHABA", "KAKA-KA HOTEL", "KAKA-KA RESTAURANT" AND "KAKA- KA GARDEN". His contention is that he is running a restaurant under the trademark "K-D-H KAKE-DA-HOTEL", the mark having been adopted by his late father in 1931 in respect of a restaurant in Lahore. The registration of the mark was first granted in favour of his father on 14.12.1950. The case of the plaintiff is that he came across the defendants' application for registration of the label mark [1] in February 2014 and thereafter discovered that the defendants are trading under the names "KAKA-KA DHABA", "KAKA-KA HOTEL", "KAKA-KA RESTAURANT" AND "KAKAKA GARDEN". The trademark application revealed that the defendants claimed use of the mark since 15.05.2006, although on their website it has been stated that the mark is being used since 1982.

(3.) The defendants filed a written statement dated 13.05.2014, in which one of the defences taken is that the defendant no.1 has a registered trademark [1] which was registered on 15.05.2006. The defendant no.1 claims to have used the mark since 14.08.1997. It is stated in the written statement that although defendant no.1 was incorporated in 1997, and its claim of user of the mark could not predate its incorporation, the mark was used since 1980s for a food cart and since 1993 for a restaurant. The defendants have therefore inter alia invoked the exemption provided in Section 30(2)(e) of the Act.