mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4365 of 2007 IN SUIT NO. 3151 of 2007 Sadguru Hotel .. Plaintiff versus Ganesh Sundar Shetty .. Defendant ... Mr.P.M. Havnur i/b S.G. Menon for the plaintiffs. None present for the defendant. CORAM : D.G.KARNIK, J DATED : 21st April 2008 P.C.: 1. Heard learned counsel for the plaintiffs. None present for the defendant. 2. By this motion, the plaintiffs seek an injunction restraining the defendant from infringing from trade mark "Sadguru" and restraining him from carrying on any business of selling coffee, tea, preparations made from cereal, fruit juices, cold drinks, ice-creams and other food items by using the name/mark "Sadguru". 3. The plaintiffs are a partnership firm consisting of two partners Keshav Sheena Payyade and Shreenath Keshav Payyade. They are carrying out business of hoteliers and selling coffee, tea, preparations made from cereal, fruit juices, fast food, cold drinks, ice-creams and fast food items in the name and style of "Sadguru". Their name and mark "Sadguru" was registered as a trade mark on 29th November 2004 and the registration is in force. According to the plaintiffs, defendant started a business as a hotelier selling, coffee, tea, fruit juices, fast food and other food products in the name and style of "Shri Sadguru Veg". The defendant’s name and mark is similar to the plaintiffs’ mark and the defendant incorporates the plaintiffs mark as a part of its name. The defendant’s restaurant is at a distance of 1 km from the plaintiffs’ restaurant. 4. The plaintiffs, by an advocates notice dated 16th February 2007 called upon the defendant to cease and dessist from infringing the plaintiffs’ trade mark. By a reply dated 25th February 2007, the defendant admitted that plaintiffs’ mark is registered as a trade mark but contended that the plaintiffs have not put up the words "R" or "TM" after their name and therefore defendant was not aware of the plaintiffs’ trade mark. He therefore contended that he was using the trade mark "Shri Sadguru Veg" as he was not aware that the plaintiffs’ mark was registered. He further contended that he was entitled to use the same. 5. The plaintiff has filed the present suit and have taken out a motion for restraining the defendant from using the plaintiffs trade mark and for passing of his services as that of the plaintiffs. By filing an affidavit in reply, the defendant has opposed the motion. The defendant has admitted that the is using the name "Shri Sadguru Veg". However he has contended that it is totally different mark and therefore it does not amount to an infringement. Admittedly, the defendant uses the plaintiffs mark as a part of his name which is impermissible. Use of the plaintiffs’ mark as any part of hisname, in my view, amounts to infringement. Furthermore the name of the defendant is deceptively similar to the plaintiffs’ mark. In the circumstances, plaintiff is entitled to an injunction. 6. The motion is allowed in terms of prayer clauses a(ii), a(iii) and a(iv). As regards prayer clause a(i) there is no need to appoint a receiver at this juncture. Hence prayer clause a(i) is rejected. (D.G. KARNIK, J)