Bangalore District Court
Fish Mart vs Sri Hari Prasad K.S on 1 October, 2022
KABC010215162018
Form
No.9
(Civil)
Title
Sheet
for PRESENT: SRI PADMA PRASAD
Judgme
B.A.(Law) LL.B.,
XVIII Additional City Civil Judge.
Dated this the 1 st day of October 2022
PLAINTIFF: Fish Mart,
'Khaleel Plaza'
No.32 and 32/1, R.V.Road,
Basavanagudi,
Bengaluru-560 004.
Represented by
Sri S.K.Vivekanandda,
age 53 years.
[By Sri Sateesh S. Kudtarkar, Advocate]
/v e r s u s/
DEFENDANTS: 1. Sri Hari Prasad K.S.
S/o Sudhakar,
Aged about 39 years,
'OLIVIA'
Flat No. 103, 2nd Floor,
#139/1, Bilekahalli,
Sarvabhoma Nagar,
2 O.S._5653_2018_Judgment_.doc
Behind HSBC,
Off, Banneraghatta Road,
Bengaluru-560 076.
2. Sri Nishanth M.V.
S/o M.B. Vasanth Kumar,
Aged about 42 years,
No.003, Vaswani golf Vista
Orchid, Off, Old Air Port Road,
Challaghatta,
Bengaluru-560037.
3. Fish Zone,
24th Main, Opp: Bindya
Residency, 5th Phase,
J.P.Nagar, Bengaluru-560 078.
Represented by
Sri Sunil K s/o C.Kalingaiah
Aged about 39 years.
D1 and D2 - By Sri K.K Advocate
D3 - By Sri GC/ MVC, Advocate
Date of institution of the : 03/08/2018
suit
Nature of the suit : For INJUNCTION.
Date of commencement of : 25/02/2022
recording of the evidence
Date on which the : 01/10/2022
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
4 1 29
(PADMA PRASAD)
XVIII ACCJ: B'LURU.
3 O.S._5653_2018_Judgment_.doc
This is a suit for permanent injunction.
2. The plaintiff's case in nutshell is that, the
trade mark FISH MART is being continuously used by
the plaintiff since 9/4/2010 in respect of whole sale,
retail, marketing, online business and exporting of
fish, meat, processed fish, processed meat, fish and
meat products service. The defendant no.1 and 2 who
were interested in taking the franchise of FISH MART
in J.P.Nagar area of Bangalore have approached the
plaintiff and entered into a Franchisee Agreement
dated 8/8/2012 and agreed to abide by the terms and
conditions of the Franchisee Agreement and
accordingly executed the Franchisee agreement on
8/8/2012 which is valid for a period of 10 years
commencing from 8/8/2012 to 7/8/2022 and by
virtue of the said Franchisee Agreement, they became
Franchisee to have those rights to use the brand FISH
MART for the business of retailing fresh fish and allied
products through FISH MART outlet in the premises
mentioned in Schedule I of the Franchisee Agreement
4 O.S._5653_2018_Judgment_.doc
i.e., Shop No.4 in premises no.12 and 13 V.P.Khata
No.14/1, New No.14/1-12-13 situated on 24 th Main,
5th Phase, J.P.Nagar, Bangalore-78. The defendant 1
and 2 agreed for the terms and conditions set out in
the Franchisee Agreement and also agreed that on
termination of Franchisee Agreement, the defendants
shall not carry on directly and indirectly any
business, they competes with the similar business of
plaintiff within a radius of 10 Kms for a period of 5
years. The specific case made out by the plaintiff that,
the defendant no.1 and 2 have breached the terms
and conditions mentioned in the Franchisee
Agreement by creating third party right/ interest in
favour of defendant no.3 and passing off of the
plaintiff's trademark. Hence the plaintiff caused the
legal notice to the defendant to refrain from their
illegal acts but the defendants not chosen to receive
the notice. Hence plaintiff filed this suit for the reliefs
claimed in the suit.
3. The defendants 1 and 2 filed a written
statement denied the allegation in the plaint but
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admitted the Franchisee Agreement entered between
them with the plaintiff. The specific defence of the
defendant that they have carried out the business till
15/6/2018 in the plaint schedule premises, that has
been obtained from one Smt. Nasreen and due to huge
loss in the business, the defendant no.1 and 2 closed
their business on 15/6/2018 and vacated the
premises by handing over the same to landlord
Smt. Nasreen on 18/6/2018. The defendant no.1
and 2 specifically denied the creating of any third
party right / interest in favour of any person as
claimed in the plaint. The defendant further denied
that they were noway connected with defendant no.3.
Accordingly prayed for dismissal of the suit.
4. The defendant no.3 has not filed any
written statement though appeared through his
advocate.
5. On the basis of above pleading the court
framed following issues:
(1) Whether the plaintiff proves that they
are the owner and prior user of trade
mark FISHMART?
6 O.S._5653_2018_Judgment_.doc
(2) Whether the plaintiff proves that the
defendants have passed off the trade
mark of the plaintiff?
(3) Whether the plaintiff is entitled for the
relief of permanent injunction as
prayed?
(4) Whether the plaintiff is entitled for the
relief of mandatory injunction as
prayed?
(5) What order or decree?
6. Plaintiff in order to prove its case, examined
its representative as PW.1 and got marked documents
as per Ex.P1 to Ex.P12. On the other hand, defendant
neither examined any witness nor produced any
documents on its behalf as well as not cross-examined
the plaintiff's witness.
7. Heard the arguments and perused entire
records of the case. The learned advocate for the
plaintiff filed citation reported in Renaissance Hotel
Holdings Inc Vs. B. Vijay Sai and others Civil Appeal
No.404 of 2022 Supreme Court - AIR Online 2022 SC
44 in support of his case.
7 O.S._5653_2018_Judgment_.doc
8. My findings on the above issues are as
under:
Issue No. 1) ............In the affirmative;
Issue No. 2) ............In the negative;
Issue No. 3) ............In the negative;
Issue No. 4) ............In the negative;
Issue No. 5) ............As per final order for
the following:
9. ISSUE NO.1: This issue is regarding the
proving of the fact that plaintiff is the owner and prior
user of trademark FISH MART. In support of this
case, the proprietor of plaintiff namely
S.K.Vivekananda examined himself as PW.1 by filing
evidence affidavit wherein he stated in consonance
with plaint case, and also produced documents at
Ex.P1 to Ex.P12. Ex.P2 is the trademark certificate
obtained online with Ex.P3 I.e, certificate under
Section 65B of Indian Evience Act and also produced
Legal Use Certificate at Ex.P12. The Ex.P2 trademark
certificate sufficiently shows that the plaintiff has
obtained the trademark FISH MART as on 2/8/2018
8 O.S._5653_2018_Judgment_.doc
in class 35 under No. 2643759 with effect from
17/12/2013. Therefore, it is clear that plaintiff is the
registered trademark owner of FISH MART and there
is no material to disbelieve the said documentary and
oral evidence of plaintiff. Hence, this court is of the
opinion that the plaintiff has sufficiently proved that
the plaintiff is the owner and prior user of the
trademark FISH MART. Accordingly, this issue is
answered in affirmative.
10. ISSUE NO.2: This issue is framed on the
contention of the plaintiff that the defendants have
passed off the trademark of plaintiff. The case made
out by the plaintiff in the plaint is that the plaintiff is
the trademark holder of FISH MART and using the
said trademark since 9/4/2010. The specific case of
the plaintiff that the defendants 1 and 2 approached
the plaintiff to carry on the same business under the
name of FISH MART at J.P.Nagara. Accordingly, the
plaintiff and defendant no.1 and 2 have entered into a
Franchisee Agreement as on 8/8/2012. The
defendants also agreed to the terms and conditions
9 O.S._5653_2018_Judgment_.doc
set out in Franchisee Agreement, but they violated the
said terms of Franchisee Agreement and created a
right to the third plaintiff and thereby the defendant
infringed or passed off of the plaintiff's trademark.
Hence, it is for the plaintiff to prove that the
defendants have infringed and passing off of the
plaintiff's trademark by using the trade name as FISH
ZONE, which is deceptively similar to the plaintiff's
trademark.
11. The specific defence of the defendant no.1
and 2 in the case is that, due to the loss of business,
they have closed their business as on 15/6/2018 in
the plaint schedule premises and handed over the
premises to landlord as on 18/6/2018. The defendant
no.1 and 2 totally denied the creating of any right to
the third party to carry out the business. The
defendant no.1 and 2 specifically denied any link
between them and third defendant.
12. In this case, the plaintiff while filing the
suit made one Babu Basappa as the proprietor of
10 O.S._5653_2018_Judgment_.doc
third defendant but subsequently got amended the
name of third defendant as Sunil.K. The said Sunil K
though appeared to the court not putforth any defence
in the case.
13. In view of the aforesaid case and defence,
the plaintiff must prove that the defendant no.1 and 2
have created right in favour of the third defendant to
do the fish business as claimed in the plaint.
Otherwise, the case of the plaintiff cannot be
accepted.
14. In this case, the entering of the Franchisee
Agreement between the plaintiff and defendant no.1
and 2 not in dispute, and the plaintiff is the
trademark owner of the word FISH MART is also not
in dispute. The defendant no.1 and 2 clearly admitted
that they have carried out the business as per the
Franchisee Agreement entered between plaintiff and
defendants at Ex.P1. The defendant no.1 and 2 also
not disputed the terms and conditions of Franchisee
Agreement. The case made out by the defendant no.1
11 O.S._5653_2018_Judgment_.doc
and 2 is that, due to the loss in the business they
have closed their business as on 15/6/2018 in a
premises that has been obtained by them from one
Smt. Nasreena Begum by depositing sum of
Rs.3,00,000/-. Subsequently on 18/6/2018, they
have vacated the premises by collecting the advance
amount of Rs.3,00,000/-. This fact is not disputed by
the plaintiff. It is also not the case of plaintiff that the
defendant no.1 and 2 have continued their business
as per the terms of Franchisee Agreement. Therefore,
the plaintiff has to prove that the defendant no.1 and
2 have created third party interest in the plaint
schedule premises to run the business. There is no
material whatsoever before the court to show that the
defendant no.1 and 2 have created any right in favour
of third defendant to run the business claimed by the
plaintiff, so that it can be accepted that the defendant
no.1 and 2 have violated the terms of Franchisee
Agreement.
15. The defendant no.3 not disputed the
running of FISH business in the name of FISH ZONE.
12 O.S._5653_2018_Judgment_.doc
Now it is to be considered that whether the defendant
no.3 has infringed or passed off of the plaintiff's
trademark FISH MART. Admittedly the trademark
plaintiff is FISH MART and the defendants trademark
is FISH ZONE. The claim of the plaintiff is that both
the names are identical and the name FISH ZONE is
deceptively similar to the word FISH MART. In
support of the said contention, the plaintiff relied on a
decision reported in Renaissance Hotel Holdings Inc
Vs. B. Vijay Sai and others Civil Appeal No.404 of
2022 Supreme Court - AIR Online 2022 SC 44. In the
said case, renaissance word has been copied with the
prefix of Sai and that has been considered as the
infringement and passing off. The said two names are
relating to the hotel business. Now in the case on
hand, the word FISH is generic and dictionary word.
The plaintiff has carried out the business in the name
of FISH MART, and the name of the defendants
business is FISH ZONE. The claim of the plaintiff is
only on the basis of word 'FISH'. It is relevant to note
that business of plaintiff and defendant was in respect
13 O.S._5653_2018_Judgment_.doc
of the fish. Therefore, either the plaintiff or defendant
cannot change the word FISH for business. Now, it is
to be considered that whether mart and zone are
deceptively similar or not. Merely because the said
words mart and zone are having the prefix name
FISH, it cannot be accepted that the defendant no.3
has infringed or passed off the plaintiff's trade name.
The pronunciation as well as spelling and the words
in the plaintiff's trade name and defendants trade
name is totally different and there is no possibility of
confusion in the two names. Admittedly the plaintiff is
not running any fish business wherein the defendant
no.3 is running the fish business. It is also not the
case of plaintiff that he is running the business in the
premises stated in plaint para 5 at shop no.4,
premises no.12 and 13, V.P.Khata no.14/1 new no.
14/1 -12 -13, situated on 24 th main, 5th Phase,
J.P.Nagara, Bangalore-560078 since 2010 or from the
date of obtaining the trademark.
16. As per the trademark Ex.P2, the plaintiff
was carrying the business at Kaleel Plaza, RV road,
14 O.S._5653_2018_Judgment_.doc
Basavanagudi. Therefore, absolutely there is no
material on record to show that this plaintiff has
carried out any business in the premises claimed in
the plaint or Franchisee Agreement. It is relevant to
note that the defendant no.1 and 2 are not the owners
of aforesaid premises. It is the specific case of the
defendant no.1 and 2 that they have obtained the said
premises on rent and due to the loss in the business,
they have handed over the premises. When the
defendants 1 and 2 are not the owners of the premises
wherein they have carried out the business, certainly
they cannot be held liable for the business carried out
by the subsequent person occupied the premises
after the vacating of premises by the defendants.
17. There is no bar under any law to carry out
the business which is identical to the business of
others as the same is guaranteed under the Indian
Constitution. If there is any such condition, certainly
such conditions are not in accordance with law and
that cannot be accepted as legal or lawful condition.
In the case on hand, it is not in dispute that the
15 O.S._5653_2018_Judgment_.doc
defendant no.1 and 2 have carried out their business
in the rented premises. It is also not in dispute that
the defendant no.1 and 2 have not vacated the said
premises. It is the specific case of the defendant no.1
and 2 that the said premises is belongs to
Smt.Nasreen Begum and to her they have handed
over the vacant possession. Once the possession has
been handed over to the landlord, the landlord has
every right to lease out her premises to others. The
person who obtained the premises on lease can do the
business of his choice in accordance with law. There
is no material on record to show that the defendant
no.3 is carrying out any business which is against the
existing laws.
18. The plaintiff while filing the suit claimed
that the defendant no.3 is represented by one Babu
Basappa claiming that he is the owner of said
property. But, in the suit got amended the name of
the proprietor of third defendant Sunil.K. Hence, in
order to accept the case, the plaintiff has to make out
a case that the defendant no.1 and 2 have created any
16 O.S._5653_2018_Judgment_.doc
right in favour of Sunil.K to do the fish business.
Absolutely there is no material on record to show that
there is any nexus between said Sunil. K and
defendant no.1 and 2 in connection with the business
of Sunil. K. Hence, it cannot be said that the
defendant no.1 and 2 have created any third party
right in respect of the business claimed in the plaint.
19. As discussed above, the word Zone and
Mart are totally different and those words are not even
phonetically similar. Further, there is no trading by
the plaintiff in the name of FISH MART in the place
wherein defendant no.3 is carrying out the business.
In fact, the plaintiff has not at all made out any case
to show that where exactly he has carried out the
business either prior to the execution of the
Franchisee Agreement or at the time of execution of
the said agreement. It is not the case of the plaintiff
that the plaintiff was carrying out the business in the
place wherein defendant no.1 and 2 carried out the
business and thereafter in view of the Franchisee
Agreement, the defendant no.1 and 2 have continued
17 O.S._5653_2018_Judgment_.doc
the said business. Under such circumstances, the
claim of the plaintiff certainly cannot be accepted.
Therefore, for these reasons, this court is of the
humble opinion that the plaintiff has failed to make
out any case to show that the defendant no.1 and 2
have assigned any third party right in respect of the
fish business in the name of FISH MART to the
defendant no.3. Accordingly, this issue is answered in
the negative.
20. ISSUE NO.3 AND 4: These two issues are
regarding the entitlement for the relief claimed in the
suit. The plaintiff failed to prove Issue No.2 i.e.,
passing off of the plaintiff's trademark. When the
plaintiff failed to prove the said fact, certainly the
plaintiff is not entitled for the relief claimed in the suit
though defendant no.3 not put forth any defence nor
defendant no.1 and 2 has not given any oral evidence.
Accordingly, these two issues are answered in
negative.
18 O.S._5653_2018_Judgment_.doc
21. ISSUE NO.5: In view of my finding on the
above issues, I proceed to pass the following:
The suit of the plaintiff is hereby
dismissed.
No order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 1 st day of October 2022.] [PADMA PRASAD] XVIII Additional City Civil Judge.
BENGALURU.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 S.K.Vivekananda
2. List of witnesses examined on behalf of the Defendant/s:
NIL.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Franchise agreement between plaintiff and defendant no.1 and 2. Ex.P2 Online printout of trade mark certificate.
19 O.S._5653_2018_Judgment_.doc Ex.P3 Certificate u/s 65B of Evidence Act.
Ex.P4 Copy of the legal notice.
Ex.P5 6 postal receipts together.
Ex.P6 Notices dated 25/6/2018 (6 in to numbers).
Ex.P11
Ex.P6(a)
to Postal covers.
Ex.P11(a)
Ex.P12 Legal Use Certificate
4. List of the documents marked for the
defendants:
NIL.
[PADMA PRASAD]
XVIII Additional City Civil Judge.
BENGALURU.
1/10/2022 P-SSK D1 & D2 - KK D3 - GC/ MVC For Judgment...
...Order pronounced in the Open Court....
(Vide separate detailed Order..) The suit of the plaintiff is hereby dismissed.
No order as to costs. Draw decree accordingly.
[PADMA PRASAD] XVIII Additional City Civil Judge.
BENGALURU.
2 O.S._5653_2018_Judgment_.doc 1 2 O.S._5653_2018_Judgment_.doc 2