Madras High Court
Mr.A.D.Padmasingh Isaac vs A.K.S.Traders on 19 August, 2021
C.S.No.305 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.305 of 2008
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.,
No.6, Ground Floor,
15th Street, Anna Nagar, 'G' Block,
Chennai – 600 040.
Represented by its Director,
Mr.Ashwin Pandian ...Plaintiffs
Vs.
A.K.S.Traders,
V.M.P.Nagar,
Kurinjipadi – 607 302.
S.A.District. ...Defendant
Prayer: Plaint filed under Order IV Rule 1 of the Original Side rules and
Order VII, Rule 1 of C.P.C., r/w. Sections 27(2), 29, 134 and 135 of the
Trade Marks Act, 1999, praying as follows:-
a) granting a permanent injunction, restraining the Defendant, by
itself, its servants, agents, distributors, or anyone claiming through him from
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C.S.No.305 of 2008
manufacturing, selling, advertising and offering for sale spices & masalas
using same or similar get up, and colour scheme used by the Defendants
shown in Document No.2 or any other visually similar mark or in any media
and use the same in invoices, letter heads and visiting cards or by using any
other trade mark which is in any way visually or deceptively or phonetically
similar to the Plaintiffs' registered trade mark AACHI MASALA
KULAMBU CHILLY POWDER as shown in Document No.1 or in relation
to any masalas & spices and use the same pouches, packets or use the mark
in invoices, letters heads and visiting cards or any other trade literature or
by using any other trade mark which is in any way visually, or phonetically
similar to the Plaintiffs' registered Trade Mark Nos.922594, 922595,
1318494 & 1318495 or in any manner infringe the Plaintiffs' registered
Trade Mark.
b) directing the Defendant to surrender to the Plaintiffs all the
packing material, cartons, advertisement materials and hoardings, letter-
heads, visiting cards, office stationery and all other materials
containing/bearing deceptively similar the color 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.
c) 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.
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C.S.No.305 of 2008
d) directing the Defendant to pay to the plaintiffs the costs of the
suit.
For Plaintiffs : Ms.C.Daniel & Gladys Daniel
For Defendant : Set Exparte
JUDGMENT
The plaintiffs seek injunctive reliefs against the defendant
contending that the defendant is infringing the trademark of the plaintiff,
which is registered with Registration No.1318495. The reliefs of mandatory
injunction for destruction of offending materials and accounts are also
sought for.
2.The plaintiff would claim that it is a manufacturer of spices and
masala powders in the trade name of 'AACHI'. According to the plaintiff,
the plaintiff has got the trademark registered under Clause 30. In the course
of its business, the plaintiff is manufacturing and marketing AACHI
KULAMBU CHILLY Masala. The product of the plaintiff is packed in
pouches of various size. The pouches contain a particular colour scheme
and the ingredients are arranged in a China clay plate, in a particular
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C.S.No.305 of 2008
manner. The label itself has been registered and the plaintiff has also been
featured with a legal user certificate in respect of the said registration.
While so, the defendant, who is also a manufacturer of spices came out with
a product called Kulambu Milagai Powder. While the brand name of the
defendant is 'AKS Masala', the packaging of the defendant contained almost
the same colour scheme of that of the plaintiff. The sachets of the defendant
contain green colour with red stripes and blue letters. The packaging of the
plaintiff is also of the same colour scheme, where the colours, green, yellow
and red are used alternatively. Ingredients of the Chilli Masala are arranged
in a particular manner, in a China plate. The defendant has also copied the
said feature and used in its sachets. The whole representation of the sachets
of the defendant is almost deceptively similar to that of the plaintiff's
sachets.
3.According to the plaintiff, the defendant, by infringing the
trademark of the plaintiff is attempting to pass off its goods as the goods of
the plaintiff. It is also the contention of the plaintiff that the plaintiff has got
a wide market for its products all over South India and therefore, it is also
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C.S.No.305 of 2008
put to heavy loss by these kind of deceptive practices.
4.On the above pleadings, the plaintiff would seek injunctive
reliefs and relief of accounting as stated above. Despite service, the
defendant did not chose to appear either in person or through counsel to
defend the suit. Therefore, the defendant was set exparte.
5.One Mr.B.Gnanasambandam, the General Manager of the
plaintiff's Company has been examined as P.W.1. He has also filed a proof
affidavit reitrating the averments in the plaint. Exs.P1 to P13 have been
marked on the side of the plaintiff. Ex.P4 is the registration certificate
along with the legal user certificate of the trademark No.1318495 and Ex.P5
is the registration certificate of Trademark No.922595. Ex.P3 is the
plaintiff's label and Ex.P13 is the defendant's label. A look at these two
labels would show that they are strikingly similar and that the consumer
would be made to believe that the products are one and the same.
6.Applying the law laid down by the Hon'ble Supreme Court in
Parle's case reported in 1972 1 SCC 618, one could make out the
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C.S.No.305 of 2008
deceptive similarity in the labels and there is a possibility of consumer,
buying the defendant's products mistaking it for the plaintiff's product. The
colour scheme and get up of the labels is so strikingly similar that there is a
huge chance of a customer being mislead into believing to that the products
are from the same origin.
7.In the light of the above evidence, I am convinced that the
plaintiff is entitled to the reliefs sought for in the suit. Hence, this suit is
decreed as prayed for. No costs.
19.08.2021
kkn
Internet:Yes/No
Index:Yes/No
Speaking/Non-speaking
List of witness examined on the side of the plaintiffs:
B.Gnanasambandam - P.W.1
List of documents filed on the side of the plaintiffs:
S.No. Description of Documents Exhibit
1 The original authorization letters dated 06.08.2021 Ex.P1
2 The certified copy of the plaintiffs advertisement in RITZ Magazine. Ex.P2
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C.S.No.305 of 2008
S.No. Description of Documents Exhibit
3 The original plaintiffs' label AACHI Kulambu Chilly Masala Ex.P3
4 The photocopy of Registration Certificate of Trade Mark No.1318495 Ex.P4
and Legal user certificate dated 02.04.2007 (original seen and
returned)
5 The photocopy of Registration certificate of trade mark No.922595 Ex.P5
dated 10.01.2004 (original seen and returned)
6 The photocopy of Registration Certificate of Trade Mark No.922594 Ex.P6
dated 26.07.2005 (original seen and returned)
7 The photocopy of the Legal User Certificate of Trade Mark Ex.P7
No.922595 dated 10.02.2006 (original seen and returned)
8 The photocopy of Registration Certificate of Trade mark No.1357284, Ex.P8
dated 26.10.2006 (original seen and returned)
9 The photocopy of certificate of Incorporation of Nazareth Foods Ex.P9
Private Limited dated 23.07.2001 (original seen and returned)
10 The photocopies of Certificate of Commercial Tax Registration of Ex.P10
Aachi Masala & Foods (P) Ltd dated 10.07.2006 (original seen and
returned)
11 The photocopy of Certificate of Commercial Tax Registration and Ex.P11
Central Sales Tax of Aachi Spices & Foods dated 28.12.2006 and
03.01.2007 (original seen and returned)
12 The photocopy of Trade Mark License user Agreement between Ex.P12
Mr.A.D.Padmasingh Isaac trading as Aachi Spices and Foods and
Aachi Masala Foods Pvt. Ltd., dated 01.04.2007. (original seen and
returned)
13 The original defendant's label A.K.S. Ex.P13
List of witness and documents filed on the side of the defendant:
Nil
19.08.2021
kkn
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C.S.No.305 of 2008
R.SUBRAMANIAN, J.
KKN
C.S.No.305 of 2008
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C.S.No.305 of 2008
19.08.2021
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