~ ~ ~ ~ ~ ~ ~ ~ ~ The defendant in O.S. No.10/2006 of the District Court, Thrissur, against whom a decree for permanent prohibitory injunction has been passed against passing off, and who has been ordered to pay an amount of ₹50,000/- as damages to the plaintiff, has come up in appeal. 2. The facts in short are that the plaintiff was using a trademark for his business and was continuing with the business in the name and style as “Shah Advertisers”. It is his case that he was the first user of such a trademark and, therefore, he was entitled to maintain an action against passing off. It is the case of the present appellant that his father was using a trade name “Shaji Advertising” and after the demise of his father, the appellant continued the business in the name and style as “Sha Associates” and, therefore, the same cannot be a colourable imitation of the trade name of the first respondent. During the pendency of the suit before the court below, the appellant as well as the respondent got registered their respective trademarks from the Trademark Authority.
3. After taking evidence in the matter, the court below came to the conclusion that the word 'Shah' is the exclusive service mark of the respondent herein and that the appellant has no right or authority to use the same or deceptively similar mark in respect of his trade name or business, thereby a decree of perpetual injunction has been passed against the appellant and further enabling the respondent herein to realise an amount of ₹50,000/- towards damages from the appellant.
4. When this appeal came up for hearing, there is no representation for the respondent. On all the last posting dates also, there was no representation for the respondent. Heard the learned counsel for the appellant.
5. The learned counsel for the appellant has pointed out that after the impugned decree, the appellant had stopped his business and has not been continuing with any such business in the name and style as “Sha Associates”. According to the learned counsel for the appellant, even on merits of the matter, the trademark for which registration has been obtained by the appellant, could not have been considered as a colourable imitation, which is deceptively similar to that of the trademark of the respondent. When the appellant has stopped the business as such, in fact, the matter has now become infructuous. The importance of the matter is presently mere academic. To have any further probe in the matter is mere wastage of judicial hours. The learned counsel for the appellant has pointed out that there was no proof regarding the actual damages in the matter and the court below ought not have decreed the realisation of ₹50,000/- as damages from the appellant. Presently, the matter is not being challenged or defended by the respondent. On hearing the learned counsel for the appellant and on the perusal of records, this Court is of the view that the decree, by which damages has been granted by the court below, is only to be set aside.
In the result, this appeal is allowed in part and that part of the decree by which the respondent is permitted to realise an amount of ₹50,000/- as damages from the appellant herein, is set aside. Regarding the other part of the decree against passing off, as the appellant has stopped business as such, the same has become infructuous. No order as to costs.
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(B.KEMAL PASHA, JUDGE) aks/05/06 // True Copy // PA to Judge