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The learned Judge rejected the plaintiff's application for injunction on the ground that appeal against the decree in the earlier suit has been pending in this Court and passing of any order in the present suit would lead multiplicity of proceedings and amount to interference with the appeal pending before this Court.

The moot question in the present appeal, as it appears from the pleadings of the parties before the court below, is that whether the learned Judge failed to appreciate that the injunction application filed by the appellant was for infringement of a register trade mark and not against "passing off" of an unregistered mark? Further, the learned Judge failed to appreciate the cause of action for "passing off" and cause of action for infringement are totally different and as such the principle of res judicata as under Section 11 of the Civil Procedure Code has got no application in the present case.

Mr. Bachawat for the appellant has submitted that the Learned Judge failed to appreciate that the plaintiff being the registered proprietor and has the exclusive right to use the words trade mark "SEA HAWK" in respect of hotel and restaurant services either identifying or a conjunction or confusion with other words, marks, devices etc. It is, further, submitted that adopting the mark "HOTEL NEW SEA HAWK" by the respondent is nothing, but violation of the statutory rights of the plaintiff. The appellant is the registered proprietor of trade mark "SEA HAWK" in class 42 under the trade Mark Act, 1999, having conceived and adopted the mark in the year 1974 prior to the respondent and, therefore, is entitled to statutory protection of such mark. The injunction application was filed by the appellant for infringement of a registered trade mark and not against passing off an unregistered mark. The registered trade mark "SEA HAWK" is exclusively in respect of the plaintiff's hotel and lodging services and none else. The plaintiff has been providing such services for last over three decades and has become a hallmark of excellence in a hotel business.

This suit is filed alleging infringement of a registered trade mark and not against passing off an unregistered mark. The earlier suit was based on passing off unregistered trade mark, which was dismissed and appeal is pending before this Court. The infringement of trade mark is a statutory action under Section 29 of the Trade Marks Act, 1999.

The plaintiff got his trade name registered in the year 2006 under the Trade Mark Act, 1999, and took action against the respondent/defendant alleging infringement of its trade mark by him in the present suit. Admittedly, plaintiff is carrying on hotel business at Digha in the name and style "HOTEL SEA HAWK" since long. The respondent/defendant started his hotel business at Puri in the same name and style and subsequently, after being requested by the plaintiff/appellant the respondent changed name of the hotel by adding the word "NEW".