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Secondly, in his counter-claim, the appellant had clearly pleaded that the name "The Only Place", was coined by his father, was used by his father for running a restaurant. His father's restaurant, "The Only Place" had earned a tremendous goodwill in Bangalore. For, the restaurant was well known for serving Western food. Therefore, the goodwill of the unregistered trade mark " The Only Place" belonged to his father.

Thirdly, when the appellant and the respondent created the partnership firm "M/s. Aaaminah Steak & Pasta Company", the appellant's father permitted the partnership firm the use of the unregistered trade mark "The Only Place"

for a consideration paid by the Firm. Thus, the unregistered trade mark "The Only Place" was not brought into the partnership firm as a property of the partnership. The said unregistered trade mark continued to be the property of the appellant's father.

Fourthly, with the demise of the appellant's father, the goodwill of "The Only Place" became part of his father's estate. Therefore, the goodwill devolved down to the appellant and his two sisters. Moreover, relying on Section 2 (zc) read with Section 39 of the Trade marks Act, 1999 ("the Act", for short), the learned counsel has pleaded that an unregistered trade mark may be assigned or transmitted with, or without the goodwill of the business concerned. Furthermore, a transmission may be "by operation of law, devolution on the personal representation of the deceased person, and by any other mode of transfer, but not being an assignment". Thus, as the personal representative of his late father, the appellant is justified in claiming that the goodwill of the unregistered trade mark, "The Only Place" has been transmitted to him with the death of his father.

Fifthly, on 21.01.2010, the appellant, and his two sisters entered into a Family Settlement which was reduced into writing. According to the Family Settlement, the goodwill of "The Only Place", was to belong to the appellant. Therefore, the appellant has the exclusive right to use the name "The Only Place". Hence, the respondent did not have the right to use the unregistered trade mark "The Only Place", and to run his restaurant in the name and style of "The Only Place". Moreover, since the unregistered trade mark did not belong to the partnership, after the dissolution of the partnership firm, the unregistered trade mark could not be used by the respondent.

Sixthly, since the unregistered trade mark belongs to the appellant, the balance of convenience is in his favour. Moreover, after the dissolution of the firm, the appellant has also started a restaurant using the name "The Only Place" in another part of the city. If the respondent were permitted to continue to use the unregistered trade mark, "The Only Place", it would cause irreparable loss to the appellant. Therefore, the appellant had succeeded in proving all the three essential ingredients for being granted a temporary injunction in his favour. However, still the learned Judge has dismissed his application for temporary injunction.