Our client Bademiya (“the Plaintiff”) had filed a Suit against Mr. Mubin A. Zahurislam (“the Defendant”) for restraining the defendant from in any manner using in relation to any business of manufacturing and selling or dealing in eatables the trading name “BADEMIYA” or any name deceptively similar thereto.
The Plaintiffs commenced the business of making and selling preparations of `Seekh Kababs’ under the trade mark “BADEMIYA” behind Hotel Taj Mahal at Coloba, Mumbai, in the year 1947. The Plaintiffs are also the registered proprietor of the trade mark “BADEMIYA’S” in class 29 and “BADEMIYA” in class 42. Over the years the plaintiffs’ business has acquired tremendous goodwill and reputation amongst the members of Indian Public and Foreign Tourists.
In the first week of January 2011, the Plaintiffs noticed the Defendant’s eating house situate at 7 Bungalows, Andheri, Mumbai bearing the name “Wah Bademiyan“. Thereafter the Plaintiff gave a cease and desist notice to the Defendant and filed the Present Suit.
The Defendant contended that he is carrying on the restaurant business after acquiring the relevant licenses and permission and hence cannot be prevented from serving the said food items. He further contended that his trade mark is different from the Plaintiffs’ trade marks and that the Plaintiffs’ Partnership firm is unregistered.
Dr. Tulzapurkar Sr. Counsel for the Plaintiff submitted that the present suit is maintainable as the Plaintiffs have filed this suit for enforcement of their statutory rights as enacted by the Trade Marks Act, 1999, and for protection of their common law rights. He further contended that the Defendant’s impugned trade mark is visually and phonetically identical and/or deceptively similar to the plaintiffs registered trademark. The addition of the word “WAH” is of no significance.
Conclusion
The said Hon’ble Court held that the impugned trade mark of the Defendant is visually and phonetically identical or deceptively similar to the Plaintiffs registered trade marks. The Defendant is, therefore, guilty of infringing the Plaintiffs’ registered trade marks.
