Mr.A.D.Padmasingh Isaac vs /

C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07.07.2021 CORAM: THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 1.Mr.A.D.Padmasingh Isaac, Trading as Aachi Spices and Foods Old No.4, New No.181/1, 6th Avenue, Thangam Colony, Anna Nagar, Chennai-600 040. 2.M/s.Aachi Masala Foods [P] Ltd., Old No.4, New No.181/1, 6th Avenue, Thangam Colony, Anna Nagar, Chennai-600 040. Represented by its Director Mr.Ashwin Pandian .. Plaintiffs /versus/ Nala's Foods, #1, Avvai street, Meenakshi Amman Nagar, Alwar Thiru Nagar, Chennai-600 087. .. Defendant 1/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 This Civil Suit is filed under Order IV Rule 1 Original Side Rules read with Order VII Rule 1 of CPC read with Sections 27[2], 29, 134 and 135 of the Trademarks Act 1999, prayed for (a) granting a permanent injunction, restraining the Defendant, by itself, its servants, agents,, distributors, or any one claiming through him from manufacturing, selling advertising and offering for sale using same or similar get up, and colour scheme used by the Defendant's shown in Document No.2 or any other similar trademark or any media and use the same in invoices, letter heads and visiting cards or by using any other trademark which is in any way visually or deceptively or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or in relation to any masala items and use the same pouches, packets of masalas and spices or any other goods or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other trademark which is in any way visually or phonetically similar to the plaintiffs' registered Trademark No.1318495, or in any manner infringe the plaintiff's registered trademark; (b) granting a permanent injunction, restraining the Defendant, by itself, its servants, agents, distributors, or any one claiming through him from manufacturing, selling, advertising and offering for sale using same or similar get up, and colour scheme used by the Defendant shown in Document No.2 or any other similar trademark or any media and use 2/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 the same in invoices, letter heads and visiting cards or by using any other trademark which is in any way visually or deceptively or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or in relation to any masala items and use the same pouches, packets of masalas and spices or any other goods or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other trademark which is in any way visually or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or in any manner pass off the Plaintiffs' goods; (c) directing the Defendant to surrender to the Plaintiffs' all the packing materials, cartons, advertisement materials and hoardings, letter- heads, visiting cards, office stationery and all other materials containing / bearing the name “ARU SUVAI” and packets in the colour scheme and get up as shown in Document No.2 or other deceptively similar trade mark used in the pouches and packets in respect of masalas; (d) directing the Defendant to render an account of profits made by them by the use of the impugned Trademark and get up as shown in Document No.2 on the goods referred and decree the suit for the profits found to have been made by the Defendant, after the Defendant has rendered accounts; and 3/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 (e) directing the Defendant to pay to the Plaintiffs' the costs to the suit. For plaintiff : M/s.C.Daniel & Gladys Daniel JUDGMENT The suit is filed for the following relief: (a) granting a permanent injunction, restraining the Defendant, by itself, its servants, agents,, distributors, or any one claiming through him from manufacturing, selling advertising and offering for sale using same or similar get up, and colour scheme used by the Defendant's shown in Document No.2 or any other similar trademark or any media and use the same in invoices, letter heads and visiting cards or by using any other trademark which is in any way visually or deceptively or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or in relation to any masala items and use the same pouches, packets of masalas and spices or any other goods or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any 4/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 other trademark which is in any way visually or phonetically similar to the plaintiffs' registered Trademark No.1318495, or in any manner infringe the plaintiff's registered trademark; (b) granting a permanent injunction, restraining the Defendant, by itself, its servants, agents, distributors, or any one claiming through him from manufacturing, selling, advertising and offering for sale using same or similar get up, and colour scheme used by the Defendant shown in Document No.2 or any other similar trademark or any media and use the same in invoices, letter heads and visiting cards or by using any other trademark which is in any way visually or deceptively or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or in relation to any masala items and use the same pouches, packets of masalas and spices or any other goods or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other trademark which is in any way visually or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or in any manner pass 5/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 off the Plaintiffs' goods; (c) directing the Defendant to surrender to the Plaintiffs' all the packing materials, cartons, advertisement materials and hoardings, letter- heads, visiting cards, office stationery and all other materials containing / bearing the name “ARU SUVAI” and packets in the colour scheme and get up as shown in Document No.2 or other deceptively similar trade mark used in the pouches and packets in respect of masalas; (d) directing the Defendant to render an account of profits made by them by the use of the impugned Trademark and get up as shown in Document No.2 on the goods referred and decree the suit for the profits found to have been made by the Defendant, after the Defendant has rendered accounts; and (e) directing the Defendant to pay to the Plaintiffs' the costs to the suit. 2. According to the plaintiff, he is the owner of the trademark AACHI and has registered the name for various food products under Class 5, 29, 30, 32 & 42. Over the years, the plaintiff has grown into one 6/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 of the leading manufactures and marketers of spices in India. To exploit the goodwill and the market of the plaintiff, the defendant had imitated the mark of the plaintiff with same colour scheme and had patently infringed the plaintiff's registered trademark “AACHI MASALA KULAMBU CHILLY POWDER” for its product “ARU SUVAI KULAMBU CHILLY POWDER”. The defendant's label consisting of word “ARU SUVAI” written prominently embossed in back ground label is alleged to be the imitation of the plaintiff's colour combination in its wrapper. In the plaint, the similarity between two marks has been listed out. Being prima facie satisfied about the allegations of infringement of trademark, this Court on 10.08.2016 granted interim injunction against the defendant from using the registered trademark of the plaintiff or imitating the same. The summons sent to the defendant was returned as refused. Therefore, the defendant was called absent and set ex-parte on 18.02.2021. 3. The plaintiff was asked to let in evidence. Accordingly, Mr.B Gnanasambandam was examined as PW.1. On behalf of the 7/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 plaintiff. 19 exhibits were marked to substantiate the claim of the plaintiff. Ex.P.10 is the copy of the trademark license user agreement between the plaintiff and Aachi Masala food products limited. Ex.P.13 is the copy of the trademark license user agreement between the plaintiff and Aachi spices and food private limited. Ex.p.16 is the copy of legal use certificate of the trademark No.1318495 Aachi for class 30 goods. 4. On perusal of Ex.P.16, this Court finds that the plaintiff Mr.A.D.Padmasingh Isaac trading as Aachi Spices and Foods is the registered proprietor of the device and word mark Aachi Masala. Pursuant to the legal use certificate, the plaintiff is marketing his product using the registered Aachi masala label for the goods “KULAMBU CHILLY POWDER” as depicted on the pouch of the plaintiff which is marked as Ex.P.18. 5. The allegation against the defendant is that the label, the design, the device “Aachi Masala” (label) registered as a trademark and word mark with the competent authority is imitated by the defendant for 8/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 the goods “KULAMBU CHILLY POWDER”. The plaintiff to the above mentioned documents has substantially proved that its registered trademark and word mark is marketed as Aachi Masala Chilly Powder(label) is imitated by the defendant for marketing its product “SRI ARU SUVAI CHILLY KULAMBU POWDER” 6. The adoption of the plaintiff's mark and label by the defendant is with the intention of poaching reputation and goodwill of the plaintiff. Therefore, this Court finds that the plaintiff is entitled for the injunction relief prayed for restraining the defendant from using the plaintiff's trademark “AACHI MASALA KULAMBU CHILLY POWDER” and for any other device with similar get up and colour scheme on the pouch or packets. 7. Since the defendant whereabouts as of now is not known, the relief sought by the plaintiff in the suit in prayers A and B are allowed. The consequential relief sought by the plaintiff in prayers C and D are rejected. 9/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 8. In the result, the suit is partly allowed with costs. Consequently, connected applications are also closed. 07.07.2021 Index : yes/no rpl 10/11 https://www.mhc.tn.gov.in/judis/ C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 Dr.G.JAYACHANDRAN,J. rpl C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016 07.07.2021 11/11 https://www.mhc.tn.gov.in/judis/