Madras High Court
Mr.A.D.Padmasingh Isaac vs Nala'S Foods on 7 July, 2021
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
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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
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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
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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
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
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
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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
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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
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.
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
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
https://www.mhc.tn.gov.in/judis/
