Madras High Court
Amrutanjan Health Care Ltd vs Yashvi Enterprise on 7 December, 2021
C.S.(Comm.Div.)40 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :07.12.2021
Coram:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Civil Suit (Comm.Div.) No.40 of 2021
Amrutanjan Health Care Ltd.,
No.103, (Old No.42-45),
Luz Church Road, Mylapore,
Chennai 600 004
Rep by its Company Secretary,
Mr.M.Srinivasan. .. Plaintiff
/versus/
Yashvi Enterprise,
Near HSC, Pandey Gaon,
Landmark-Sani Mandir
Pithoragarh, Uttrakhand 262501. ..Defendant
Prayer: Civil Suit has been filed under Order IV, Rule 1 of the Original
Side Rules and Order VII, Rule 1 of the C.P.C. Read with Sections 27,
134 & 135 of the Trade Marks Act, 1999 and Proviso 1 to Section 7 of
the Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015, praying to pass a judgment and
decree for:-
(a) a permanent injunction restraining the defendant, themselves,
their partners, successors-in-business, servants, agents distributors,
dealers, stockists, wholesalers, retailers, shop keepers, representatinves,
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C.S.(Comm.Div.)40 of 2021
assigns and all other persons claiming through them from manufacturing,
selling and distributing, advertising sanitary napkins using the mark
COMFY LIGHT SANITARY PADS which is deceptively similar to the
plaintiff's trademark AMRUTANJAN COMFY SNUG FIT amounting to
infringement of the plaintiff's registered trademark in any manner
whatsoever;
(b) a permanent injunction restraining the defendant by themselves,
their directors, legal representatives, successors in business, assigns,
servants, agents, transporters, distributors, printers, stockists,
wholesalers, dealers, retailers, advertisers or any one claiming through or
under them from committing acts of passing off and enabling others to
pass off by manufacturing, distributing, marketing, selling, offering for
sale, advertising or in any other manner dealing in sanitary napkins or
any other product bearing the deceptively similar mark COMGY LIGHT
SANITARY PADS which is confusingly similar to plaintiff's brand name
and mark AMRUTANJAN COMFY or in any other manner whatsoever
which would be considered to be similar to the plaintiff's mark;
(c) the defendant be ordered to pay to the plaintiff a sum of
Rs.10,00,000/- as damages for committing acts of infringement of
trademark and passing off;
(d) the defendant be ordered to surrender to the plaintiff for
destruction all goods advertisement materials, packing materials, cartons,
wrappers, labels in respect of sanitary napkins and other allied/cognate
goods containing the offending mark COMFY LIGHT SANITARY
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C.S.(Comm.Div.)40 of 2021
PADS or any other mark/label similar to plaintiff's trademark
AMRUTANJAN COMFY SNUG FIT;
(e) a preliminary decree be passed in favour of the plaintiff
directing the defendant to render true and faithful account of profits
earned by them by use of offending label for sanitary napkins or other
allied and cognate goods and a final decree be passed in favor of the
plaintiff for the amount of profits thus found to have been made by the
defendant after the latter have rendered accounts;
(f) for entire costs of the suit; and
(g) pass such further and other orders as this Hon'ble Court may
deem fit and necessary under the facts and circumstances of the case.
For Plaintiffs :Mrs.Chandini Pradeep
For Defendant :Set exparte
------
JUDGMENT
The present suit was filed with the grievance that the
defendant is interfering with the registered trademark of the plaintiff and
the plaintiff has sought for various relief against the defendant.
2. The suit was filed on 10.08.2021 and it was admitted on
13.08.2021. When the notice was sent to the defendant, the defendant
sent a communication dated 13.09.2021 to the plaintiff. The said
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C.S.(Comm.Div.)40 of 2021
communication in its entirety is extracted hereunder:-
"Yashvi Enterprises
Near HSC Pandey Gaon, Pithoragarh,
Uttarakhand, 262501
3 Floor, Ceebros Building No 32,
Cenotaph Road, Teynampet,
Chennai 600018
Subject:Acceptance of Claims
Date 13/09/2021
Dear Claimant,
This response is to your notice letter received on the 13th
day of September, 2021. I, Lakshman Singh Airy (Authorised
Representative), on behalf of Yashvi Enterprises hereby
accept the claims made by you after having validated
through the Office of the Controller General of Patents,
Designs & Trademark office, DPIIT, Ministry of Commerce
and Industry, Govt. of India.
Affirmative Statement
I was not aware until your notice letter was brought to my
attention that we were violating trademark on file with the
Indian Trademark Office. I have taken all measures to
remove the registered term from all of our products. I assure
you, disposing off this sanitary brand name 'comfy light'
promptly. I request your good self to kindly not take this
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C.S.(Comm.Div.)40 of 2021
case to Courts and allow us a week's time to dispose off the
brand that is causing infringement. I thank you for your
support and understanding.
-Sign-
Sincerely,
Lakshman Airy
Yashvi Enterprises"
3. When the matter came up for hearing on 23.11.2021, this Court
passed the following order:-
"The Registry has circulated a note to the effect that
the suit summons has been served on the sole defendant on
30.09.2021. There is no appearance either in person or
through counsel for the defendant an the defendant is called
absent and set ex-parte.
2. The learned counsel for the plaintiff submitted that
immediately after the suit summons was received by the
defendant, a communication was sent through e-mail to the
plaintiff to the effect that the defendant will not use the
trademark in question and the defendant had requested the
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C.S.(Comm.Div.)40 of 2021
plaintiff to permit them to sell the goods that are already
available. The learned counsel submitted that the said e-mail
communication will be produced before this court and this
Court can pass a final judgement based on the same in the
suit.
3. Post this case under the caption 'For Passing
Judgement and Decree' on 07.12.2021."
4. When the matter was taken up for hearing today, the learned
counsel appearing on behalf of the plaintiff submitted the communication
received from the defendant. It is very clear from the above said
communication that the defendant does not want to continue with the
impugned mark and has also given an undertaking to that effect. This
undertaking was sent through e-mail dated 15.09.2021 and the above said
letter was attached with the mail. Both the e-mail communication as well
as the letter are taken on file. The defendant did not choose to enter
appearance through counsel and is not willing to defend the case and
hence, was set ex-parte.
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C.S.(Comm.Div.)40 of 2021
5. In view of the above, the suit is decreed in terms of the
undertaking given by the defendant through letter dated 13.09.2021. The
undertaking letter shall form part of the decree.
6. The suit is accordingly allowed and considering the facts and
circumstances of the case, there shall be no order as to costs.
07.12.2021
Index:yes/no
nsa/rka
List of Witness examined on the side of the Plaintiffs:-
Mr.R.Prasanna Raghavan ----- PW.1
List of Witness examined on the side of the Defendant :-
-----
List of the Exhibits marked on the side of the Plaintiff:-
Sl. Dated Description and nature of Parties
Nos. documents
1. 26.05.2016 Certified copy of registration of Plaintiff
trademark AMRUTANJAN
COMFY under application
no.3268724 in class 5
(Photocopy)
2. 2016-2021 Copies of invoices for sale of Plaintiff
AMRUTANJAN COMFY
products (Photocopy)
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C.S.(Comm.Div.)40 of 2021
Sl. Dated Description and nature of Parties
Nos. documents
3. -- Promotional materials proving Plaintiff
use of the mark AMRUTANJAN
COMFY by plaintiff (Photocopy)
4. 30.06.2021 Notice issued by Plaintiff to Plaintiff to Defendant
Defendant (Office Copy)
5. 03.08.2021 Web page extracts from Defendant
defendant's website
www.comfypads.co.in (Printout)
6. -- Plaintiff's AMRUTANJAN Plaintiff
COMFY SNUG FIT packaging
(Photograph)
7. -- Defendant's infringing COMFY Defendant
LIGHT SANITARY PADS
packaging and advertisement
materials (Photograph)
List of the Exhibits marked on the side of the Defendants:-
--------
N.ANAND VENKATESH. J.,
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C.S.(Comm.Div.)40 of 2021
nsa/rka
C.S.No.40 of 2021
07.12.2021
https://www.mhc.tn.gov.in/judis
