HONOURABLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL Nos.588 AND 590 OF 2011 COMMON JUDGMENT: These two Civil Miscellaneous Appeals are connected with each other. Hence, they are disposed of through a common judgment. The appellants and the contesting respondents are common to both the appeals. 2. Haji Mohammed Abdul Sukhoor, father of the appellant in both the matters, and the Managing Director of the contesting respondent started the business in textiles by using the name ‘Kachhi’, at Jadcherla. Over the period, the partnership firms came into existence with his sons and other kin as partners. The firms in turn, were reconstituted or dissolved. The business came to be shared by many individuals or firms, as the case may be, having the same origin. While the appellants are carrying on the business with the name ‘Kachhi Brothers’ at Hyderabad, the respondent private limited company is carrying on business in the name and style of ‘Kachhi Textiles’, at the same place. 3. The respondent filed O.S. No.409 of 2007 in the Court of the X Additional Chief Judge, City Civil Court, Hyderabad, under Section 28 of the Trade Marks Act, 1999 (for short ‘the Act’) complaining that the appellants are infringing their trademark. It was pleaded that on an application submitted by it on 29-07-2003 for registration of the trade mark ‘Kachhi Textiles’ with certain graphic description, the competent authority registered the trade mark through proceedings, dated 01-09-1989. According to them, ever since the date of registration of the trade mark, no other person or agency, including the appellants, are entitled to use the word ‘Kachhi’ that too, with the same graphic description. It was urged that in the registered trade mark, the word ‘Kachhi’ assumes significance and special importance and that there was no justification for the appellants in using the expression ‘Kachhi Brothers’ with the same graphic description of the word ‘Kachhi’. 4. Respondents filed I.A. No.1062-A/2010 under Order – XXXIX Rules – 1 and 2 CPC in that suit, with a prayer to grant temporary injunction to restrain the appellants from using the trade mark ‘Kachhi Brothers’. The application was opposed by the appellants by raising several objections. It was urged that they have already initiated proceedings before the appellate authority under the Act, for cancellation of the registration of trade mark and that there is not much similarity between the trade mark registered with in favour of the respondent and the trade name used by them. 5. Independently, the appellants filed O.S. No.489 of 2010 in the same Court under Section 34 of the Act, against the respondent complaining that the latter is passing off of their trade name. It was pleaded that the appellants too have initiated steps before the competent authority for registration of their trade name and that even otherwise, the respondents have no right to use the trade name, which resembles the one under which they are carrying on the business. They filed I.A No.1062/2010 for temporary injunction, almost in similar terms. 6. Through common order, dated 24-02-2011, the trial Court allowed I.A. No.1062-A/2010 and dismissed I.A No.1062/2010. Hence, these two Civil Miscellaneous Appeals under Rule –1 of Order – XLIII CPC. 7. Sri K. Hemaprakasa Rao, learned counsel for the appellants submits that the trial Court did not appreciate the matters in their correct perspective and that the grant of injunction against the appellants and dismissal of their application are contrary to the provisions of the Act and the Rules made thereunder. He submits that the appellants were using the same name, with the existing pattern, at least from the year 2001 and earlier to that their successive assignors, under the relevant documents, were using it from the years 1960 and 1977. Learned counsel submits that in the graphic description the mark used by his clients is substantially different from the one registered in favour of the respondent and that in terms of the trade name, the one used by the respondent is similar to that of the appellants. 8. Sri G. Vidyasagar, learned counsel for the respondent, on the other hand, submits that the trial Court has taken into account, the relevant facts borne out by records and the provisions of law, and had arrived at just and proper conclusion. He submits that what may have been the justification for the appellants in using the trade name or mark ‘Kachhi Brothers’ before the trade mark was registered in favour of the respondent; there was no justification or entitlement for them to use it, after the said registration. 9. The activity undertaken by the appellants on the one hand and the respondent on the other is the one of sale of textiles. They are not undertaking any process of manufacture. As observed earlier, the textiles business was started by using the word ‘Kachhi’ in the 60’s by the common ancestor of the parties. As in the case of any other family business, branches have emerged and the same activity is undertaken by various branches with the passage of time. It is not uncommon that such branches make an endeavour to exhibit their origin in one form or the other. Obviously, for that reason, the appellants on the one hand and the respondent on the other, are very particular to add the word ‘Kachhi’ to their trade mark or trade name to show the origin of their activity. 10. Any relief granted in the form of a temporary injunction against a trader on the ground that there is infringement of trade mark of another would certainly effect their business activity. It is only when almost a foolproof case is made out that such an extreme step can be taken. In the instant case, it is to be noted that the names in which the appellants on the one hand and the respondent on the other are carrying on their business, are substantially different except that the first word ‘Kachhi’ is common in both. The appellants are carrying on business in the name of ‘Kachhi Brothers’ whereas the respondent is doing it in the name of ‘Kachhi Textiles.’ In that view of the matter, it cannot be said in the limited context of the interlocutory applications that both the expressions are identical. A semblance of similarity can be noticed to certain extent,’ in the graphic description of the word ‘Kachhi’ in both nomenclatures. 11. The registration of the trademark ‘Kachhi Textiles’ is of recent origin. The appellants could certainly have been restrained from using the expression ‘Kachhi Brothers’ had they started using it subsequent to the date of registration. It is not in dispute that the expression was being used for the past several years. It is only in the course of trial that the question as to whether it can be said that the expression or the form used by the appellants is substantially similar to the one registered in favour of the respondent or vice versa, can be adjudicated. When the similarity is not to the degree of one being mistaken for the other, it is not at all advisable to restrain either of the parties from doing business in the present form. Further, in case it is proved to the satisfaction of the Court that on account of the use of the trade name or trade mark, the damages can certainly be claimed in properly constituted proceedings. 12. Hence, the Civil Miscellaneous Appeal No.588 of 2011, wherein order in I.A. No.1062-A/2010 in O.S. No.409 of 2007 is challenged, is allowed and the order of temporary injunction granted by the trial Court is set aside. Civil Miscellaneous Appeal No.590 of 2011 is dismissed upholding the order of denial of injunction in favour of the appellants herein. 13. None of the observations made by this Court in this order shall be treated as expression of any view on merits of the suits or other proceedings and the trial Court shall decide the suits or other proceedings on their own merits. 14. There shall be no order as to costs. ___________________ L.NARASIMHA REDDY, J July 04, 2011. KTL