PRABHA SRIDEVAN,CHAIRMAN - (1.) THE mark in question was applied for by the respondent herein. It was opposed by the appellant. The respondent applied for Thalappakatti Biriyani Hotel under Application No. 1408388 in Class 42. That was opposed by the appellant. Both the oppositions went in favour of the respondent herein. Here we are concerned with the mark 1385141 applied for by the appellant.
(2.) THE appellant's application was made on 15.09.2005 claiming user from 30.04.2005. It was advertised in the TM Journal 1352 dated 16.08.2006. The notice of opposition was filed on 16.03.2007 by the respondent. The respondents application was made on 23.12.2005 claiming user from 07.04.1957. It was advertised in the TM Journal No.1371 dated 01.07.2007. The appellant filed the Notice of Opposition on 08.01.2008. Hearing was held on 06.08.2010 in both the matters and Orders were passed on 20.09.2010 allowing respondents opposition and dismissing the appellants opposition and therefore the present appeals have been filed.
(3.) THE facts before us are as follows: - Way back in 1957, one Nagasamy Naidu who is the Father of N. Dhanapalan who claimed to be the partner of the firm Thalappakattu Naidu Ananda Vilas Biriyani Hotel (Thalappakkattu AVBH) commenced the hotel business. According to the pleadings, D. Nagasamy Naidu always wore a Turban. He was referred to as Thalappakatti Naidu. According to the respondent the Briyani stall was called Ananda Vilas Briyani Stall which became famous as Thalappakattu Biriyani Naidu Hotel. Nagaswamy died in 1978. The business was carried on by his son N. Dhanapalan as Thalappakatti Ananda Vilas Biriyani Hotel. According to the respondent, it thereafter became a partnership firm with N.Dhanapalan and his son D. Nagasamy as partners. They had acquired a huge reputation because of the quality of the Biriyani. Articles were published in various journals. It was even mentioned in Tamil Movies with the result the word Thalappakatti' automatically referred to Briyani. This use of the word Thalappakatti' was continuous, extensive and open. The appellant, claimed that one of their ancestors one Mr. Sulaiman was the Chief of the Horse Regiment in the palace of Raja of Sivaganga. He used to wear Turban which is called Thalappakattu and according to the appellant, they were Thalappakattu Rawthers. They started the Hotel business in a small scale in 2005 and as a mark of respect for their grand father and fore father they adopted the word Thalappakattu'. According to the appellant they served extremely delicious Biriyani and the adoption was bonafide. They refuted the claim of the respondent that the father Nagaswamy Naidu was known as the Thalappakattu Naidu and that they carried on their business only as Ananda Vilas Biriyani.(AVB).;