AI Drafter 
TaxTMI 
TaxTMI 
2014 (1) TMI 685
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....oprietor, its officers, servants, agents and representatives from manufacturing and selling and offering for sale or supply, advertising, directly or indirectly dealing or rendering services in the hospitality industry or other related goods and services under the mark/ name "THE NOODLE HOUSE" and/or any other mark confusingly similar thereto, or any imitation or variation thereof, amounting to an infringement and passing-off of the plaintiff company's trademark; using the mark "THE NOODLE HOUSE" and/or any deceptively similar name, from in any manner holding out an association of its products or business with that of the plaintiff and from doing acts as to pass off or likely to pass off the defendant's goods or business as those of the pla....
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....above. 5. Summons were issued in the suit vide order dated 30.05.2008 returnable on 11.07.2008. As service report was awaited, fresh summons were issued vide order dated 11.07.2008 returnable on 12.08.2008 on which date summons were again directed to be issued returnable on 12.09.2008. On 12.09.2008, service report was awaited and the matter was renotified for 19.11.2008. On 19.12.2008, the defendant was proceeded ex parte as despite being served with 'Dasti' summons on 22.10.2008, the defendant failed to put in an appearance and file its written statement. Order dated 19.12.2008 also allowed the plaintiff's application under Order 39, Rule 1&2, Civil Procedure Code (CPC) and restrained the defendant from manufacturing, selling, offering....
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....ward by the Government of India, Tourism Department in 2001. Learned counsel submits that the plaintiff company employs more than 5000 people worldwide and operates in 86 commercial locations worldwide, has 62 affiliates and a world class Culinary Institute in Chennai with total revenue of Rs.130 million in the year ending 2007. 8. Learned counsel submits that the plaintiff company adopted the trademark "THE NOODLE HOUSE" in December 2003, which registration is pending, for restaurants serving Chinese cuisine and since then the trademark has emerged as the plaintiff company's most popular chain. Learned counsel submits that the trademark is a fanciful and invented combination of words and has come to be associated exclusively with the pl....
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....endant. Learned counsel submits that the same is likely to cause confusion and will result in dilution of the plaintiff's mark. 11. Though the registration of the plaintiff's mark is still pending, the plaintiff can lay common law claim over its trademark and succeed in a suit for passing off if the plaintiff can establish prior use of the trademark. In Heinz Italia v. Dabur India Ltd., 2007 (6) SCC 1, the Court while relying upon the decision in Century Traders Vs. Roshan Lal Duggal, AIR 1978 Delhi 250 observed that the prior user of trade mark has been held to be sufficient to entitle the aggrieved part to secure an injunction even when in absence of any registered trade mark. 12. The mark "THE NOODLE HOUSE" was adopted by the plain....
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....s a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so." 14. A perusal of the label mark of the plaintiff and the defendant marked as Ex. PW 1/2 and PW1/3 leave no room for doubt that the use of the impugned mark by the defendant is likely to cause confusion and mislead the public into believing that the services of the defendant are associated with the plaintiff. The same are as follows: Mark of the Plaintiff - Mark of the Defendant- 15. The label mark of the plaintiff consists of the words "THE NOODLE HOUSE". As already mentioned hereinabove, the plaintiff uses the aforementioned trademark in r....
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.... of goodwill. Furthermore, the plaintiff risks losing reputation if the defendant does not uphold the standard of service as offered by the plaintiff as a consumer is likely to be deceived into believing that the goods offered by the defendant actually belong to the plaintiff. 17. In my view, the aforementioned ingredients for passing off as laid down in Cadila Health Care (supra) stand satisfied in this case. The mark and goods being identical, the suit deserves to be decreed in favour of the plaintiff to the extent of grant of Permanent Injunction. 18. As regards the quantum of damages, though the plaintiff needn't prove actual damages suffered by him, it is imperative that the Court while awarding damages considers the averments ma....