MERCY BIGI Vs. SUNILKUMAR

JUDGEMENT

(1.) The plaintiff in an action for passing off is the appellant in this appeal.

(2.) The plaintiff is engaged in home stay business in the name and style 'Palmy Residency' at Alappuzha from 2006 onwards. According to her, on account of the use of the name 'Palmy Residency' for the home stay run by her at Alappuzha from year 2006 onwards, she acquired a goodwill and reputation in the home stay business in the name 'Palmy Residency'. It is also her case that she had applied for registration of the trade mark "Palmy" during 2010. The grievance highlighted by the plaintiff in the suit is that she had sold the building in which she was running the home stay in the name 'Palmy Residency' to the defendant on 2.4.2010 and in the very same building, the defendant started a home stay in the name 'Palmy Regency'. According to the plaintiff, the attempt of the defendant is with a view to pass off his services as that of the plaintiff and therefore, she is entitled to a decree of permanent prohibitory injunction restraining the defendant from using the name "Palmy" or any other name deceptively similar to the name "Palmy" for his home stay.

(3.) The defendant contested the suit. The fact that the defendant is running a home stay in the building purchased from the plaintiff is not disputed. According to the defendant, the name of his home stay is 'Lotus Palmy Regency' and not 'Palmy Regency' as contended by the plaintiff. It was also contended by the defendant that the style of writing and the colour used for writing the name of his home stay are different from the style of writing and the colour used by the plaintiff. It is further contended by the defendant that the logo of the trade name of the plaintiff is different from the logo of the trade name of the defendant. According to the defendant, a picture of a Palm tree is there in his logo which is absent in the logo of the plaintiff. Above all, it was contended by the defendant that the word "Palmy" is a dictionary word and the plaintiff cannot claim exclusive right to use the same.