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The Plaintiff is a registered partnership concern carrying on business of Andhra Style Vegetarian & Non- vegetarian Restaurant. The Plaintiff is using the Trade mark NANDHINI in respect of said business since 1989. The artistic work, design and get-up in respect of trade mark NANDHINI exclusively belongs to them. On account of intrinsic value, salesmanship and quality of food prepared by them, their trade mark has become popular all over South India. The Trademark and Copyright in respect of NANDHINI exclusively belongs to the Plaintiff. They are running 12 branches at Bangalore. They also registered their trade mark NANDHINI and NANDHINI DELUXE under class 42, under various numbers 1294121, 1284398, 1284399, and 1360905. The same has been registered under the Copy right Act 1957 under No.A-62848/2002. Plaintiff further submits that the Defendant has commenced its business under the name CAFE NANDINI by using plaintiff's trademark NANDHINI DELUXE. The action of the Defendant to adopt the trademark CAFE NANDINI is fraudulent, illegal, contrary to law and unauthorized and calculated to deceive the customers and perverse, illegal and amounts to an act of deceit. The trade mark CAFE NANDINI is structurally, phonetically and visually similar to Plaintiff's registered Trademark. It is further contended that 1st defendant has commenced its business in the month of April 2015. The first defendant appears to be licencee of 2 nd defendant who is using NANDINI for milk and milk products. The 2 nd defendant in Opposition No.256162 opposed the registration of plaintiff's trademark NANDHINI under No.1360905 in class 42 before before registrar of trademark which came to be dismissed on 17.4.2009. It is further contended that the defendants have no authority or right to use the trading style CAFE NANDINI for running restaurant. Since the Plaintiff and Defendants are engaged in business of providing food, the adoption of trade name CAFE NANDINI by Defendants is causing confusion among the customers and it also amounts to infringement and passing off under Trademarks Act. Hence, the suit is filed for the above reliefs.

22.Issue No.2 & 3: It is the contention of the plaintiff that the Defendant has commenced its business under the name CAFE NANDINI by using plaintiff's trademark NANDHINI DELUXE. The action of the Defendant to adopt the trademark CAFE NANDINI is fraudulent, illegal, contrary to law and unauthorized and calculated to deceive the customers and perverse, illegal and amounts to an act of deceit. The trade mark CAFE NANDINI is structurally, phonetically and visually similar to Plaintiff's registered Trademark. It is further contended that 1st defendant has commenced its business in the month of April 2015. The first defendant appears to be licencee of 2nd defendant who is using NANDINI for milk and milk products. The 2 nd defendant in Opposition No.256162 opposed the registration of plaintiff's trademark NANDHINI under No.1360905 in class 42 before before registrar of trademark which came to be dismissed on 17.4.2009. It is further contended that the defendants have no authority or right to use the trading style CAFE NANDINI for running restaurant. Since the Plaintiff and Defendants are engaged in business of providing food, the adoption of trade name CAFE NANDINI by Defendants is causing confusion among the customers and it also amounts to infringement and passing off under Trademarks Act.

26. It is also contended that the burden of proving issue No.2 rests on the plaintiff. Sec.27 of Trademarks Act, 1999 provides that an action for infringement does not lie in respect of an unregistered trademark. Therefore, as a corollary, the plaintiff must prove that it is the owner of the registered trademarks as on the date of institution of the suit, in order to maintain a suit for infringement. It is argued that in the present case, the plaintiff has not produced any material to substantiate its contention regarding ownership of the mark NANDHINI or NANDHINI DELUXE as on the date of filing the suit. Therefore, on this ground alone, a suit for infringement filed by the plaintiff is not maintainable and prayed for answer the issue No.2 in the negative.

27. It is further argued that the plaintiff has obtained the registration of the word mark NANDINI and device mark. In fact, 2nd defendant has, in all, more than 30 registered trademarks in its name under various classes.Though the words Nandhini of the plaintiff and Nandini of the 2nd defendant sounds phonetically similar, the plaintiff cannot prevent the 2 nd defendant from using the words 'Nandini' in relation to any products, as such use is statutorily protected under section 34 of the Trademarks Act, 1999. Sec.34 of Trademarks Act provides that a proprietor of a trademark does not have the right to prevent the use by another party of an identical or similar mark where that user commenced prior to the user or date of registration of the proprietor. It is an admitted fact that the 2 nd defendant's brand '"Nandini" was established in the year 1983, six years prior to the commencement of the plaintiff's business, and the 2nd defendant had also obtained registration for the word and mark 'Nandini' in the year 1986 itself, 3 years prior to the commencement of the plaintiff's business and 12 years prior to the plaintiff's application for registration in 1998. Being aware of the existence of the prior trademark of the 2nd defendant bearing the same name, the plaintiff's attempt to confer upon itself monopoly to use the word Nandini cannot be permitted.