"It is stated that the father of the plaintiffs, late Mr. Amir Chand initially adopted the trademark 'Nizam 's', as Karta of the HUF and got the same registered under Classes 29, 30, 32, 33, 24, 42 and 43 of the Trade Marks Act, 1999. It is stated that upon the demise of late Mr. Amir Chand, the said trademarks devolved upon the plaintiffs by virtue of being male members of the HUF as well the last will and testament of the late Mr. Amir Chand dated 01st March, 2018. It is stated that the plaintiffs have applied for certificates for use in legal proceedings of the trademark 'Nizam V. It is stated that by virtue of extensive and continuous use as well as the high quality taste of the plaintiffs' food items, the trademark 'Nizam V is exclusively associated with the plaintiffs' business and services.
It is stated that the plaintiffs own the website www.nizams.com and have listings on food portals such as Zomato, Swiggy, Trip Advisor, Dine out etc. It is stated that the plaintiffs also have a strong social media presence.
It is the case of the plaintiffs that the annual revenue generated by the plaintiffs in the financial year 2017-2018 was INR 7,83,17,646 and the expenditure incurred on advertising and promotion of their business and services for the same financial year was INR 30,17,500.
Learned counsel for the plaintiffs states that in 1998, on the basis of an oral understanding, the plaintiff no. 1 allowed the defendant nos. 1 to 4 to operate a franchise of Nizam's in Gurgaon. He states that in July, 2016, the plaintiffs terminated the franchise with the defendants due to various reasons including non-adherence to standards and misappropriation of funds and rights.
Learned counsel for the plaintiffs states that in December, 2016 the plaintiffs came across the defendant no. l's trademark application dated 19th February, 2015 for registration of the device mark New Nizam 's Kababs and Biryani' under Class 43 of the Trade Marks Act, 1999 claiming use since 29th July, 2014, when the defendant nos. 1 to 4 were operating the franchise of the plaintiffs. He states that subsequent investigations revealed that after termination of the franchise, the defendant nos. 1 to 4 started operations under the deceptively similar trade name New Nizam 's Kababs and Biryani', in August, 2016 A pictorial representation of the plaintiffs' and defendants' trademarks is reproduced herein below:-
Learned counsel for the plaintiffs states that the plaintiffs' issued a cease and desist letter dated 12th December, 2016 to the defendant nos. 1 to 4 and vide reply dated 29th December, 2016, the defendant nos. 1 to 4 responded refusing to comply with the plaintiffs' demands stating that their mark is different from the plaintiffs'. He states that since the plaintiff no. 1 suffered a severe illness, he could not follow up on the defendant nos. 1 to 4's activities, however on 13th November, 2017, the defendant no. 1 's trademark application was declared abandoned on account of non-prosecution. He states that post recovery of his illness, upon gaining knowledge of the defendant nos. 1 to 4's attempt to revive their trademark application, operation of the website ww.newnizams.com, that they were listed on various online food portals such as Zomato, Swiggy, Food Panda etc. as well social me........