BADE MIYA Vs. MUBIN AHMED ZAHURISLAM

JUDGEMENT

(1.) In the present Notice of Motion the plaintiffs have prayed for an order and injunction restraining the defendant from in any manner using in relation to any business of manufacturing and selling or dealing in eatables the trading name "BADEMIYAN" or any other trading name consisting of the word "BADEMIYA" written in any script or the impugned trademark and the impugned logo mark as appearing in the photograph Exhibit-H to the plaint, or any other deceptively similar mark so as to infringe the plaintiffs registered trademark bearing number 641759 in Class-29 and the plaintiffs' registered trademark bearing number 1738175 in Class-42 and to further restrain the defendant from passing off their goods and/or services as those of the plaintiffs. By consent of the parties the Notice of Motion is at the ad-interim stage taken up for final hearing.

(2.) The plaintiff no.1 is a partnership firm of which the plaintiff nos.2 to 5 are partners. In the year 1947 Mohamed Yasin Nane Miyan, the father of the plaintiff nos.2 to 5 commenced the business of making and selling preparations of 'Seekh Kababs' The Seekh Kababs were sold at a stall behind Hotel Taj Mahal at Coloba, Mumbai. The business is carried on under the name 'Bademiya'' written within a band of parallel lines and a device of a structure with a logo consisting of the words 'bsk' written in a circle with the two downward strokes of the letter 'b' and 'k' showing minarets. The photograph of the sign board of the plaintiffs' food stall is annexed as Exhibit-A at page 23 of the plaint.

(3.) The plaintiffs are the registered proprietors of the trademark "BADEMIYA'S" bearing registration number 641759 in Class-29 registered as of 3rd October 1994. The trademark is registered in respect of Meat, newspapers, magazines and travel related journals. Some of the said articles are annexed as Exhibits-B-1 to B-10 at pages 24 to 37 of the plaint where the father of the plaintiff nos.2 to 5 and their business are prominently featured. The sales figures/turn over of the plaintiffs' business are annexed as Exhibits-D and D-1 at pages 39 and 39-A to the plaint which shows that the sales figures/turn over of the plaintiffs' business is increased from Rs.3,68,945/- (Rs.Three lakh sixty eight thousand nine hundred forty five only) in the year 1986 to Rs. 1,67,24,100/- (Rs.One crore sixty seven thousand twenty four thousand one hundred only) for the year 2009-2010.