Madras High Court
M/S.Ebony Foods Private Limited vs M/S.Zesst Foods on 22 April, 2021
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.04.2021
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.S.Nos.79 of 2020
and O.A.Nos.123 to 125 of 2020
A.No.829 of 2020
M/s.Ebony Foods Private Limited,
Rep. by its Managing Director,
Srinath Balachandran,
Head Office:100/1, Radha Krishnan Salai,
Mylapore,
Chennai 600 014. .. Plaintiff
vs
M/s.Zesst Foods,
By its Proprietor,
D.Visweswaran,
No.14, KRG Nagar Main Street,
Ganapathy,
Coimbatore 641 056,
Tamil Nadu. ...Defendant
Prayer:Civil Suit filed under Order IV Rule I of the O.S.Rules Read with
Order VII Rule I of C.P.C. and read with Sections 27,28, 29, 134 and
135 of the Trademarks Act, 1999 read with Section 51, 55, 62 of the
Copyright Act read with Section 7 of the Commercial Courts Act No.4 of
2016, praying for the following:
i) A perpetual injunction restraining the Defendant by himself/
themselves or their men, partners, proprietors, stockiest, dealers,
servants, agents, franchisees, successors in interest, licensees, assignees,
representatives or any of them claiming through them from in any
manner infringing the Plaintiff's Registered Trademark “ZUKA” by use
of trade mark label :ZUCCA” or any other identical or similar trademark
https://www.mhc.tn.gov.in/judis/
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having identical or deceptively similar trade dress, color scheme, artistic
work, get-up and placement of expression/ or in any other manner
whatsoever;
ii) A perpetual injunction restraining the Defendant by himself/
themselves or their men, partners, proprietors, stockiest, dealers,
servants, agents, franchisees, successors in interest, licensees, assignees,
representatives or any of them claiming through them from in any
manner infringing the Plaintiff's copyright over the artistic work,
identical colour scheme, layout, get-up and lettering style, trade dress in
the Trademark label “ZUKA” by use of identical or deceptively similar
trade dress, colour scheme artistic work, get-up and placement of
expression having the label “ZUCCA” or any deceptively similar label or
in any other manner whatsoever;
iii) A perpetual injunction restraining the Defendant by
himself/themselves or their men, partners, proprietors, stockiest, dealers,
servants, agents, franchisees, successors in interest, licensees, assignees,
representatives or any of them claiming through them from in any
manner Passing off or enabling passing off of the Defendant's goods and
services under the trade mark label “ZUCCA” or any other deceptively
similar Trade Mark/ Trade dress as and for the goods of the Plaintiff
under the Registered Trade Mark “ZUKA” or in any other manner
whatsoever;
iv) The Defendant be ordered to surrender to the Plaintiff for
destruction all name boards, packing materials, printer bills, cartons,
sachets, labels and other materials bearing the impugned mark “ZUCCA”
along with artwork and trade dress which is identical with and/or
deceptively similar to that of the Plaintiff's registered trade
mark/label/package “ZUKA”
v) The Defendant be ordered to prepare and submit an account of
profits made by them by the unlawful use of the Trade Mark label of the
Plaintiff and thereafter to pass a final decree upon ascertaining the
accounts, in favour of the Plaintiff and against the Defendant;
vi) For the costs of the suit;
https://www.mhc.tn.gov.in/judis/
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For Plaintiff : Mr. P.R.Yogesh
JUDGMENT
The suit is filed for permanent injunction restraining the
defendant from infringing the plaintiff registered trademark “ZUKA” and
label and perpetual injunction restraining the defendant from infringing
the plaintiff's copyright over the artistic work, identical colour scheme,
layout, get-up and lettering style, trade dress in the trademark label
“ZUKA” and passing off the goods by the defendant as that of the
plaintiff and also for consequential relief to submit account and surrender
all the infringing products and labels during the infringement period.
2. After the receipt of the suit summon, the defendant has come
forward to compromise with the plaintiff and has filed a Memo of
Compromise with the plaintiff jointly. As per the compromise memo, the
defendant has agreed not to infringe the trademark of the plaintiff and
pass off his goods as that of the plaintiff by infringing the plaintiff's
trademark and copyright.
https://www.mhc.tn.gov.in/judis/ DR.G.JAYACHANDRAN,J.
Vri
3.In the light of the above undertaking, the plaintiff proposes to
give up other consequential relief sought against the defendant. In the
light of the terms of the compromise memo, prayer Nos.1 to 3 sought in
the plaint is allowed and prayer Nos.4, 5 and 6 in the plaint are declined.
The said compromise memo shall be part of the decree. Accordingly, the
suit is partly allowed. No costs. The connected applications are closed.
22.04.2021
vri
C.S.Nos.79 of 2020
and O.A.Nos.123 to 125 of 2020
A.No.829 of 2020
https://www.mhc.tn.gov.in/judis/
