V. Ramkumar, J.
1. The defendants in O.S. No. 2/2004 on the file of the Addl. District Court, Kozhikode are the appellants in this appeal filed under 0rder 43 Rule 1(r) of C.P.C.
2. The aforementioned suit filed by the respondent herein is one for a perpetual injunction restraining the defendants and their men from using the words 'Sagar Inn' and particularly using the name 'Sagar' denoting the name of the concern shown as the second defendant and also from using the word ' Sagar' written in the same mode and style as has been done by the plaintiff from 1978 onwards in its sign boards, hoardings, bills, visiting cards and advertisement etc. or using such other name or service as is deceptively similar to "Hotel Sagar" of the plaintiff for denoting the 2nd defendant or any hotel or restaurant or any other concern of the first defendant.
3. As per I.A. No. 1178/2004 the respondent/plaintiff also prayed for a temporary injunction in terms of the aforesaid prayer in the plaint. The Court below after hearing both sides as per order dated 25.9.2004 confirmed the ad-interim injunction already granted. It is the said order which is assailed in this appeal.
4. Advocate Sri. K. Ramakumar, the learned counsel appearing for the appellants/ defendants made the following submissions before me in support of the appeal:
The long and short of the plaint allegations amount to a complaint of passing off by a hotel situated in Calicut City against a restaurant situated about 50 kms. away at Manjeri. Such a suit for passing off instituted in a Court at Calicut against a restaurant in Manjeri will not lie in the Calicut Court under the Trade Marks Act, 1999. The present suit is one falling under Clause (c) of Sub-section (1) of Section 134 of the Trade Marks Act. While in the case of a suit for infringement of a registered trade mark covered by Clause (a) of the aforesaid Section 134(1) and a suit relating to any right in a registered trade mark covered by Clause (b) thereof, Sub-section (2) of Section 134 specifically provides that such suit is to be instituted in the District Court within the local limits of whose jurisdiction the plaintiff resides or carries on business or personally works for gain, the said provision guardedly excludes suits such as the present one falling under Clause (c) of Section 134(1) of the Act. In spite of that the suit in the present case has been instituted at Calicut where the plaintiff's concern is situated and not at Manjeri where the restaurant of the defendant is situated. Thus, the Calicut Court had no jurisdiction to entertain the suit, much less, pass the impugned order of injunction. On the merits also, the Court below failed to see that while the plaintiffs concern is a hotel, the 1st defendant's concern is only a restaurant. The distinction between a hotel and a restaurant has been lost sight of by the Court below. The plaintiff has no case that 'Hotel Sagar' is a restaurant. Many reputed hotels run their restaurants under different names. The word 'Sagar' is a common name over which the plaintiff cannot claim any exclusive right. The defendants have not adopted or copied the writing style of the plaintiff. The trade origin of 'Sagar Inn' restaurant is prominently displayed as a concern of Jaleel Associates in the advertisement in all the popular dailies produced as Exts.B3 to B12. It is common knowledge that Woodlands Hotels are run in various cities and towns by different owners and some are vegetarian while others are offering both vegetarian and non-vegetarian dishes and still the original owners of Woodlands Hotel have never complained. This is because nobody can claim any exclusive right to use that name. In the decision reported in Bharathiya Coffee Workers Catering Service (P) Ltd. v. Indian Coffee Workers Co-operative Society Ltd. (1999 (1) KLT 322), the claim for passing off by the Indian Coffee House was not upheld by this Court. The Court below has virtually decreed the suit ignoring the balance of convenience and irreparable injury which were in favour of the appellants/defendants.
5. I am afraid that I find myself unable to agree with the above submissions. The suit is one for passing off arising out of the adoption and use by the defendant from 8.4.2004 onwards of the unregistered and offending trade mark "Sagar Inn" which according to the plaintiff is identical with or deceptively similar to the unregistered trade mark "Hotel Sagar" of the plaintiff. It is the case of the plaintiff that after the plaintiff started Hotel Sagar in the year 1978 in the plaint A Schedule two storeyed building situated to the north of Mavoor Road in Calicut (Kozhikode), the name, fame and reputation of Hotel Sagar have increased and the word "Sagar" has acquired such distinctiveness that it has assumed a secondary meaning in the hotel and restaurant business and trade circles and also among its customers who have been associating the name "Sagar" as the plaintiff's business concern serving delicious and good quality food and rendering the best services to its customers. The further case of the plaintiff is that the defendants by adopting the name 'Sagar' and issuing Ext.A9 = B7 advertisement in the Chandrika Daily dated 8.4.2004 regarding the opening of "Sagar Inn" restaurant at Manjeri and thereafter starting and running the said restaurant, have misled the plaintiff's customers both in India and outside into believing that "Sagar Inn'' owned and run by the first defendant is a concern belonging to the plaintiff. The plaintiff would have it that several customers of the plaintiff who have been taking food from Hotel Sagar complained that the quality of food served by the plaintiff in the restaurant by name 'Sagar Inn' at Manjeri was inferior and that it was thereafter that the plaintiff discovered that the defendants have been fraudulently passing off the goods and services as those of the plaintiffs and making unjust enrichment to the detriment of the plaintiff. This aspect of the plaintiff's case has been, prima facie, accepted by the Court below and I am not persuaded to disagree with the view taken by the lower Court. The very fact that about 500 meters away from plaint A Schedule property where the main restaurant was opened in the year 1978, the plaintiff has subsequently started a multistoried restaurant with centralised air-conditioning in the plaint B Schedule property, prima facie, lends credence to the volume of business claimed in the plaint. The relevant averments in paragraph 3 of the plaint are not denied in the written statement filed by the defendants. A comparison of Ext.A3 signboard put up on the plaintiff's hotel and Ext. A9 sign board put up on the 1 st defendant's restaurant will show that the style of writing the word 'Sagar' is almost the same. Unless both the signboards are placed side by side and their marginal differences and dissimilarities meticulously examined, an unwary customer will easily be misled into believing that both 'Sagar Inn' restaurant at Manjeri and 'Hotel Sagar' at Calicut belong to the same business group. To the literate, apart from the literal and phonetic similarity, even the style of writing of the word 'Sagar' looks alike in both the restaurants and to the illiterate who identify the restaurant only by its name "Sagar", the nice distinction between hotel and restaurant is of little consequence. In an action for passing off, actual deception is not necessary. It is enough if there is likelihood of deception. The law on the point has been succinctly stated in A.C. Krishnan v. Nambissan Dairy Pvt. Ltd. (1997 (1) KLT 163) (Paragraphs 10, 13, 18, 20, 24, 26 to 28, 32, 33 to 40) in relation to Nambissan D.V. Dairy Farm and O.K. Nambissan Dairy. Absence of an intention to deceive or defraud is not a defence in an action for passing off because the basic ethics in the world of business is honesty and fairplay (vide Laxmikant V. Patel v. Chetanbhai Shah ((2002) 3 SCC 65) where the offending trade name was "QSS Muktijivan Colour Lab as against Muktijivan Colour Lab"). Even the trade origin put forward by the appellants to contend that the appellants' restaurant is a concern of M/s. Jaleel Associates, is not there on the sign board put up on their restaurant. (Vide Ext.A9). The statement made by the plaintiff's counsel that although the plaintiffs concern is named as "Hotel Sagar" it is not a hotel but only a restaurant and popularly known for its delectable food, was not controverted by the appellants counsel.
6. There is no dispute that "Hotel Sagar" was started by the plaintiff, a registered firm, in the year 1978 whereas "Sagar Inn" which is the proprietary concern of the 1st defendant was started only in April 2004. There is also no dispute that applications for registration of the respective trade marks of both the plaintiff's and the defendant are pending before the Trade Marks Registry since 1999 and 2004 respectively. The Court below also has found that as a previous user of the trade name "Sagar" the plaintiff has acquired sufficient reputation and goodwill.
7. I will now consider the other arguments advanced by the appellants counsel. Firstly, I am dealing with the contention based on territorial jurisdiction of the Court below. There is no dispute that the present suit is one for passing off arising out of the use by the defendant of the plaintiff's trade mark alleged to be identical with or deceptively of similar to the plaintiff's trade mark and therefore falling under Clause (c) of Section 134(1) of the Trade Marks Act, 1999 (hereinafter referred to as 'the Act', for short).
8. The Court below is not quite right in observing in paragraph 13 of the impugned order that an action for passing off is a common law remedy. Going by Section 27(2) of the Act it is only an action for passing off in relation to goods or services simpliciter which is excluded from the purview of the Act and such an action alone will constitute a common law remedy. But the present case is one for passing off arising out of use of a trade mark falling under Clause (c) of Section 134(1) of the Act which is a statutory remedy and the relief to be granted in such an action is also provided for Under Section 135 of the Act. No doubt, the observations in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories (AIR 1965 SC 980) extracted in paragraph 14 of the impugned order, may at first blush, tend to convey such an impression as was formed by the Court below. But a closer reading of the said decision of the Apex Court will show that the action for infringement in that case was under the Trade Marks Act, 1940 wherein there was no statutory remedy for passing off involving a trade mark unlike in the case of the subsequent legislations such as the Trade and Merchandise Marks Act, 1958 and the present Trade Marks Act, 1999. For the same reason, the distinction lucidly made out in the above decision of the Hon'ble Supreme Court between an action for infringement and an action for passing off may not be there in a case, as the present one, where the action for passing off is one involving a trade mark and falling under Clause (c) of Section 134(1) of the Act.
9. As per the definition of trade mark under Section 2(zb) of the Act, a trade mark is a "mark" capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their package and combination of colours and for all purposes other than criminal prosecutions, a trade mark is a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a course of trade between the goods or services, and some person having right, either as proprietor or by way of permitted user to use the mark whether with or without any indication of the identity of that person. Going by the definition of 'mark' in Section 2(m) it includes a device brand, heading, label, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. Therefore, if a name is used in relation to goods or services for the purpose of indicating a course of trade between the goods or services and some person having the right to use such name whether with or without any indication of the identity and that person, it is a trade mark. If so, the word "Sagar" as claimed by the plaintiffs is a trade mark. Even otherwise, the principles which are applicable to trade mark are equally applicable to trade name. (See ((2002) 3 SCC 65) Paragraph 12). Hence the action for passing off involving a trade mark squarely falls under Clause (c) of Section 134(1) of the Act. Even though all the 3 categories of suits falling under Clauses (a) to (c) of Section 134 (1) are to be instituted before a District Court, Sub-section (2) of Section 134 carves out an exception giving the plaintiff in the former two categories the freedom to institute the suit in the District Court proximate to him. Notwithstanding anything contained in the Code of Civil Procedure, a suit for infringement of a registered trade mark or a suit relating to any right in a registered trade mark falling under Clauses (a) and (b) of Section 134(1) of the Act, has to be instituted in the District Court within the local limits of whose jurisdiction the plaintiff actually resides or carries on business or personally works for gain. But no such liberty is given to the plaintiff in a suit as the present one falling under Clause (c) of Section 134(1). This only means that in the case of a suit as the present one falling under Clause (c) of Section 134(1) of the Act, the District Court having jurisdiction has to be decided not with reference to Section 134(2) of the Act, but with reference to the provisions in the Code of Civil Procedure. Sections 16 to 19 of the Code of Civil Procedure do not have any application to the suit on hand. Then the only other provision which applies is Section 20 C.P.C. and under Clause (a) thereof, every suit has to be instituted in the Court within the local limits of whose jurisdiction the defendant or in each of the defendants, at the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. As per Clause (c) of Section 20, the suit can be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arises. The first defendant M/s. Jaleel Associates which admittedly owns the 2nd defendant restaurant as shown in the plaint, is having its administrative office situated at Mananchira Tower, A.G. Road, Calicut. No exception has been taken in the written statement to the aforesaid description of the first defendant. In fact, it is admitted that the first defendant is in Calicut. If so, the suit instituted before the Calicut Court is fully justified. Moreover, it is admitted that Ext.A9=B7 advertisements and Exts.B3 to B6 and B8 to B12 advertisement about the starting of "Sagar Inn" were admittedly published in the dailies at Calicut and this is one of the causes of action specifically pleaded both in paragraph 6 and 8 of the plaint. In the decision reported in Santhigiri Ashram v. Moideen Haji (1998 (2) KLT 702) at paragraph 6 it is clearly held that an advertisement itself can given rise to a cause of action. Thus, when part of the cause of action is clearly shown to have arisen in Calicut, the suit before the Calicut Court is clearly maintainable under Clause (c) of Section 20 C.P.C. as well. In fact, there is absolutely no justification for the appellants to raise the objection regarding jurisdiction for the first time in this appeal. Neither in their objection to LA. No. 1178 72004 nor even in the written statement subsequently filed, had the appellants raised any objection to the jurisdiction of the Calicut Court. Having not raised this objection at the earliest opportunity, Section 21 C.P.C. precludes them from raising the same for the first time in the appeal. The decision reported in Koopilan Uneen 's daughter Pathumma and Ors. v. Koopilan Unee's Son Kuntalan Kutty dead by L.Rs. and Ors. (AIR 1981 SC 1685) has expatiated the scope of Section 21 C.P.C. to hold that all the three conditions in Section 21 must co-exist. Apart from the fact that objection regarding jurisdiction was not raised at the earliest opportunity, as noticed earlier, there is no merit also in the said objection.
10. The decisions reported in National Garments v. National Apparels (AIR 1990 Kerala 119), Nizam Din v. Sher Bahadur and Ors. (AIR 1931 Lah. 650) and Teju Singh v. Shanta Devi (AIR 1973 A.P. 51) have considered the yardstick to gauge the sufficiency or otherwise of a prima facie case in actions of this nature. Going by those parameters, I am satisfied that the plaintiff had made out a prima facie case for the grant of a temporary injunction as prayed for.
11. It is true that the interim injunction granted by the Court below is virtually in terms of the perpetual injunction sought for in the plaint. But the very purpose of interim injunction is to prevent the continued user of the offending trade mark after its detection and prompt action by the plaintiff and till the termination of the proceedings or else the plaintiff will have to helplessly suffer the invasion of his rights and wait until his grievance gets redressed in the form of a decree after a protracted trial. That is not the policy behind the provisions of Order XXXIX C.P.C. and Sections 38 and 41 of the Specific Relief Act, 1963.
12. I am not inclined to accede to the last submission made by the learned counsel for the appellants that until the final disposal of the suit the appellants may be permitted to use the words "Sagar Inn" written in a different style with the added words that the restaurant is an enterprise belonging to M/s. Jaleel Associates. First of all, there is no such offer made in the memorandum of appeal or in the affidavit in support of the petition for stay. Secondly, a similar prayer was disallowed by this Court at paragraph 40 of the decision reported in 1997 (1) KLT 163 referred to above.
13. Having considered the prima facie case, the balance of convenience and the irreparable injury aspects of the matter, I am in agreement with the Court below that the grant of injunction as prayed for by the plaintiff alone would serve the interests of justice. So long as this Court sitting in appeal is not satisfied that the decision of the lower Court is wrong, it is not within the jurisdiction of this Court to interfere with the order passed by the Court below. (Vide Fareeda v. Rajan Babu (1992 (1) KLT 162), Mahendra & Mahindra Paper Mills Ltd. v. Mahindra & Mahindra Ltd. ((2002) 2 SCC 147) and Laxmikant V. Patel v. Chetanbhai Shah and Anr. ((2002) 3 SCC 65).
14. The result of the foregoing discussion is that this appeal is devoid of any merit and is accordingly dismissed. However, in the circumstances of the case, the parties shall bear their respective costs.
It is needless to mention that as cautioned in paragraph 19 of the decision reported in (2002) 3 SCC 65, the trial of the suit has to be uninfluenced by the findings and observations made at the interlocutory stage.