# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE T.R.RAVI**
**FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 FAO NO. 165 OF 2023**
**AGAINST THE ORDER IN I.A.2/2023 IN OS 5/2023 OF DISTRICT COURT,THRISSUR**
## **APPELLANT/DEFENDANT:**
SHALY AGED 41 YEARS, W/O SHIBUS.VV@ SHIBUKUMAR S.V, MOOVARANATHALAVEEDU, SREELAKAM, TOMY LANE, PERINGAVU VILLAGE, PERINGAVU POST, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680018 BY ADVS. SRI ABRAHAM MATHAN SRI P.P.HARRIS
## **RESPONDENT/PETITIONER:**
SHIBU S.V @SHIBUKUMAR S.V S/O VELAYUDHAN, AGED 47 YEARS, MOOVARANATHALAVEEDU, SREELAKAM, TOMY LANE, PERINGAVU VILLAGE, PERINGAVU POST, THRISSUR TALUK, THRISSUR DISTRICT, NOW RESIDING AT DOING BUSINESS AS TULIPS, 3RD FLOOR, CITY CENTRE, THRISSUR, PIN - 680018 BY ADVS. SRI SANTHOSH P.PODUVAL MS. R.RAJITHA(K/870/2005) MS.CHITHRA S.BABU(K/376/2012)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **T.R. RAVI, J.**
**--------------------------------------------** F.A.O.No.165 of 2023 -------------------------------------------Dated this the 9[th] day of February, 2024
## **JUDGMENT**
The appeal is filed against an order in I.A.No.2/2023 in O.S.No.5/2023 issued by the District Court, Thrissur on 25.09.2023. The appellant is the defendant in the suit and the wife of the plaintiffrespondent. The suit is filed under Section 134 of the Trade Marks Act read with Section 26 and Order VII, Rule 1 of the Code of Civil Procedure. The case of the plaintiff is that he is engaged in the business of Beauty Parlour/Saloon from 11.07.2002 under the name and style “TULIPS”. He has been issued with trade mark under Class 16 on 07.05.2003. According to him, the appellant was allowed to participate in the business and he had opened a shop in the name of the appellant in the year 2020. It is stated that due to matrimonial disputes, the plaintiff and the defendant are living separately and the suit was filed on the apprehension that the defendant would start a Beauty Parlour under the name and style TULIPS. The application for temporary injunction restraining the defendant for conducting a Beauty Parlour in the name TULIPS has been filed as I.A.No.2 of
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2023.
2. According to the appellant/defendant, the Beauty Parlour named TULIPS was started on 11.07.2002 by her making use of the amounts mobilised by selling her gold ornaments. She claims that she had come up with the name TULIPS which is the name of a flower that symbolises perfect and deep love. It is contended that the word TULIPS is a generic expression and the plaintiff cannot claim exclusive right over the word. It is further stated that the appellant/defendant had opened almost 13 beauty parlours by the year 2015 and she was the proprietor of the Beauty Parlour. It is also contended that the plaintiff had obtained trade mark registration under class 16 of the Act, which relates to advertising materials, sign boards, banners, brochure, leaflets, paper and paper articles, cardboard and cardboard articles, printed matter, newspaper and periodicals, books, book binding materials, photographs, stationary adhesive material, etc. It is further pleaded that the plaintiff had also applied for trade mark for the name TULIPS under class 42, but the name was abandoned and hence the plaintiff does not have any right to claim protection under the Act. Allegations are also made regarding the personal life of the plaintiff, which are not material for the suit based on the Trade Mark Act and action for passing off.
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3. The trial court allowed the interlocutory application and passed an order restraining the defendant/appellant by a temporary injunction till the disposal of the suit, from using plaint A schedule trade name or conducting any Beauty Parlour or associated business under the name and style TULIPS, or, any other name deceptively similar to it. It is aggrieved by the above order that this appeal is filed by the defendant.
4. Heard Sri.Abraham Mathan, on behalf of the appellant and Sri.Santhosh P Pothuval, on behalf of the respondent.
5. The main contention of the appellant is that the court below has relied on the registration obtained under class 16, which does not have any connection with the business of a Beauty Parlour and has granted relief to the respondent. It is submitted that the said trade mark registration cannot be used for the purpose of getting a relief for violation of trade mark since the purpose for which the trade mark has been granted is different from the business of conduct of a Beauty Parlour. Another contention taken is that the court below went wrong in finding that the business was started by the respondent. According to the appellant, the Beauty Parlour was initially started by them making use of the money derived from selling the gold ornaments. In support of her contentions, the
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appellant submits that she has been conducting a Beauty Parlour under the name TULIPS in the first floor of City Centre and the same is proved by the documents produced, which showed the appellant's address as TULIPS, 1[st] floor, City Centre, Thrissur. An argument is advanced stating that in 2002 itself, the business was started in the third floor as well as in the first floor and that the appellant was the proprietrix of the business which was being carried on in the first floor. It is thus contended that the plaintiff cannot claim prior user since both of them have been using the name from 2002 itself. The counsel for the respondent submitted the argument advanced based on the address at the first floor is not something which has been pleaded by the appellant. According to the pleadings, what is stated is that the Beauty Parlour TULIPS was started on 11.07.2002 by the appellant making use of the amount mobilized by selling her gold ornaments. It is submitted that there is nothing on record to prove
the above statement. It is also submitted that the document produced by the plaintiff before the court below would show that he had obtained registration in 2003 and that he had been issued with registration under service tax in 2004 itself. It is hence submitted that the finding of the court below regarding the prior user has to be upheld since there is no evidence available to show that the appellant
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was conducting the business as the proprietrix in 2002 or any time before 2004 when Ext.A2 registration was granted to the respondent in October 2004.
6. I have gone through the documents produced by the parties before the court below and I find justification in the contention of the respondent that there is no material produced to show prior user by the appellant. The appellant has a case that even though several documents were produced before the court below, only a few of them were marked by the court below. Except for one document regarding the business started at Tirur, which shows that a registration for the business had been obtained in the name of the appellant, no such documents are produced with regard to the business which is carried on in the first floor in the City Centre in the name of TULIPS.
7. Sitting in appeal, this Court need not at this stage make elaborate reference to the evidence that is produced and render a finding on the effect of the same since any such finding will have considerable impact during the trial of the suit. It is settled law that the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised
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arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. [See **Shyam Sel and Power Limited & Anr. vs Shyam Steel Industries Limited [(2023) 1 SCC 634]** ]. All that is required to be looked into is whether the finding of the court below that a _prima facie_ case has been made out by the plaintiff warranting an order of temporary injunction is correct. It is true that a violation of the trade mark cannot be made out at this stage since the trade mark has been registered under class 16 which does not deal with beauty parlours. However, the respondent has made out a case that the Beauty Parlour was started with the name TULIPS with the same insignia which is shown in the trade mark registration during 2002 for which he had also obtained registration under the service tax regime.
8. The above facts are sufficient to show a _prima facie_ case regarding the user of the name TULIPS. Starting of another Beauty Parlour with the same name in the same locality will necessarily give a cause of action for the plaintiff for an action against passing off and the order issued by the court below only seeks to protect that. I do not find any reason to interfere with the findings rendered by the court below at this stage. However, it is made clear that the
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observations made in the order regarding the registration of trade mark and on the contention that TULIPS is a generic name are all matters which will have to be elaborately examined at the stage of trial. Since the issue is between the husband and the wife, I deem it appropriate that the trial is completed at the earliest. Hence, while dismissing this appeal, the District Court, Thrissur is directed to complete the trial and dispose of the suit O.S.No.5/2023, untramelled by the findings recorded in the order dated 25.09.2023, at the earliest, at any rate, within six months from the date on which the records of the court are received back from this Court. The appeal is dismissed with the above observation.
The Registry is directed to send back the records to the District Court, Thrissur.
**T.R. RAVI JUDGE**
Pn
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## **APPENDIX OF FAO 165/2023**
PETITIONER'S ANNEXURES
Annexure -1 ORIGINAL COPY OF APPLICATION UNDER R.T.I DATED 28.11.2023 Annexure -2 ORIGINAL COPY OF THE REPLY DATED 07.12.2023 ISSUED BY THE OFFICE OF ASSISTANT LABOUR OFFICE, THRISSUR
