Kalyan Jyoti Sengupta, J - (1.) This motion has been taken opt by the plaintiff in a passing off action of a mark "Park" yet to be registere, It is the case of the plaintiff/petitioner that it has been carrying on hotel and restaurant business under the name and style of "Park" for last 34 years in Calcutta and elsewhere. The Registration is pending, yet because of long use of the word "Park" has beco me associated with hotel business and has become very popular and well known amongst the customers and tourists both indigenous and foreign. For the quality of the service rendered by the plaintiff to the clientele it has acqquired extensive goodwill in the hotel business internationally. The defendant in or about April 2001 has set up a hotel almost of the same standard and quality using the word "Golden Park", only adding prefix 'Golden' to the plaintiff's mark 'Park'. The object is to exploit and cash in illegally goodwill and reputation of the petitioner's business as above. Therefore, this is absolutely illegal passing off. So the plaintiff/petitioner is entitled to get interim protection of injunction restraining the defendant from using the word "park" in connection with the hotel business of the defendant.
(2.) In the affidavit-in-opposition the defendant has defended contending that to the notice and knowledge of the plaintiff/petitioner it has started hotel business in Calcutta sometimes in April 2001. Before setting up this business the defendant published information in various newspapers and journals for the public in general about its intention to use the mark 'The Golden Park'. At no point of time the plaintiff raised any objection and the moment the hotel is set up, this action has been brought mala fide. In fact the officials of the plaintiff at one point of time sent guests and/or customers to the defendant's hotel for it could not accommodate in its hotel. Moreover, it is contended, word "Park" is common English word. Nobody can claim monopoly use of the common word in relation to and connection with the business. Therefore, in teeth of the acquiescing act and conduct of .the plaintiff/petitioner no injunction should be granted.
(3.) Mr. Goutam Chakraborty, learned Senior Advocate, appearing in support of the Motion, submits that the petitioner's hotel was opened in the year 1967 and since then name 'Park' has been used. Historically the word 'Park' was conceived from the Park Street in Calcutta. The expression 'Park' was selected by the petitioners as name of their hotel. Otherwise the expression 'Park' has no connection whatsoever with the hotel or hospitality business. Apart from offering residential accommodation, the hotels of the petitioners offer a variety of related services under the name 'Park' and its variants like 'Park Hotel', The International Park', 'Park Inn', 'Park Plaza', 'Park Continentals', 'The Park Towers' and 'Park International'. The hotels of the petitioners have Code to be known as 'The Park' or 'Park' and the media and the consumer alike identify the petitioner's hotel as 'Park'. In all advertisements the expression 'Park' or 'The Park' has been projected as the common commercial identity of the group hotels of petitioner. The petitioners' hotels have substantial turn over and having more than 775 rooms in this hotel. He submits that respondent's hotel situates within a kilometer of the petitioner's hotel in Calcutta. The expression 'Golden Park' has been selected by the respondent to trade on the goodwill and reputation of the petitioner vis-a-vis the mark or name 'Park' by deceiving the consumers anal leading them to the belief that 'Golden Park' is a new hotel of the petitioners' or the hotel is associated with them. Such deception or confusion is bound to arise.;