KANAKA SILKS Vs. V. NOUSHAD AND ORS.

JUDGEMENT

(1.) The defeated plaintiff in an action for passing off as also for infringement of a trade mark is the appellant.

(2.) The plaintiff is a firm running a textile shop since 2006 in the name 'Kanaka Silks' at Puthanathani in Malappuram district. They are engaged in the retail as also wholesale trade of clothes, fabrics and dress materials. One of the partners of the plaintiff is also running a textile shop in the very same name 'Kanaka Textiles' at Kulappully in Palakkad district with the permission of the firm. According to the plaintiff, they have customers from Malappuram, Thrissur and Palakkad districts; that on account of the quality of service provided to their customers, they could earn a goodwill in the business and that their sales turnover is being increased year by year. It is alleged that during July, 2010, they came to know that the defendants are planning to open a textile shop at Ottappalam in the name 'Kanaka Wedding Centre' and though the plaintiff contacted the first defendant over telephone and requested him to refrain from establishing any textile shop using the name 'Kanaka', the defendants were adamant in establishing a textile shop in the name 'Kanaka Wedding Centre'. In the circumstances, according to the plaintiff, on 3.7.2010, they have published a notice informing the public about their exclusive right to use the name 'Kanaka' for textile shops and despite the said notice, the defendants have started the textile shop on 10.7.2010 as proposed by them. The suit was filed, in the circumstances, for injunction based on the principles of passing off. In the course of the proceedings, the plaintiff obtained registration of their trade mark 'Kanaka Silks' as per the provisions of the Trade Marks Act, 1999. Thereupon, the plaint was amended and the pleadings necessary for an action for infringement of the trade mark were also incorporated in the plaint.

(3.) The defendants contested the suit contending inter alia that the word 'Kanaka' is a dictionary word over which no one can claim any protection; that they were not aware of the existence of the shop of the plaintiff until the institution of the suit and that the establishment of the shop by them was without any intention to harm anybody including the plaintiff. As regards the alleged infringement of the trade mark, the contention raised in the written statement was that they do have registration under the Trade Marks Act, 1999 for their trade name 'Kanaka Wedding Centre'.