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4. The appellant/plaintiff claims to be the proprietrix of two registered Trademarks
- bearing Nos.1839635 and 1839637 - under the name 'SEEMATTI', which is stated to be used in the retail business of textiles and such other products. According to her, even though she had obtained the registrations as early as in the year 2009, the respondent has made an attempt to infringe the same, by starting a showroom at Thiruvarur, Tamil Nadu, under the name and style 'SEEMATTI' and therefore, that she has been constrained to file the suit, seeking the following prayers:
11. However, the real question in this appeal is not whether the functioning of the showroom at Kumbakonam is protected by the provisions of the Trademark Act, but whether the new showroom started by the respondent at Thiruvarur would also obtain the said benefit.
12. In support of the contention that the showroom at Thiruvarur is entitled to be operated under the statutory protection of 'concurrent and honest use', Sri.Benoy Kadavan, vehemently submits that the same is only a branch of the one at Kumbakonam and that this has been started for the purpose of expansion of the respondent's existing business. He says that the declaration made by his client on record regarding the names and addresses of the partners of the firm, which is running both these showrooms, would clearly demonstrate that Thiruvarur shop is nothing but an extension of the Kumbakonam business and therefore, that the respondent is entitled to use the name 'Seematti' even for the said showroom.
19. Be that so, I do not deem it necessary or requisite to consider this issue at all because, even if as regards the Kumbakonam business these contentions may be applicable; coming to the Thiruvarur business, it cannot be automatically held that the principles of acquiescence will apply, unless it is shown that this showroom is a constituent of the Kumbakonam business and merely its branch or such other, but not an independent entity. These issues have never been considered by the Trial Court, but it has concluded that since the appellant/plaintiff was aware of the Kumbakonam business being run by the respondent from the year 1986, the principles of acquiescence would apply against her and therefore, that she cannot seek any injunction against the new showroom at Thiruvarur. These conclusions, I am afraid, cannot be found to be worthy of the imprimatur of this Court at this stage, without a further evaluation and assessment.
25. However, this submission itself shows that the appellant/plaintiff is conceded to be in possession of the Trademark - whether it is legally sustainable or otherwise being uncontested as of now - and therefore, when the respondent started a new showroom at Thiruvarur, they certainly must be construed to be aware of the fact that the Trademark "SEEMATTI" is in the ownership of the appellant/plaintiff. No doubt, Shri.Binoy Kadavan submits that no document is produced on record to show that his client was aware of the Trademark in favour of the appellant/plaintiff at the time when the Thiruvarur showroom was opened, but the fact that such a Trademark was in existence from the year 2009 would, ipso facto, prima facie entitle the appellant/plaintiff to an order of injunction against its infringement by any person subsequent to it.