Madras High Court
And Having Depot And Working For ... vs Iceberg Icecreams on 29 July, 2021
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.07.2021
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.S.No.485 of 2019
and
O.A.Nos.765 to 767 of 2019,
A.No.5956 of 2019
ICEBERG WALNUT FOODS (I) Pvt Ltd.,
Represented by its Managing Director K.A.Abdul Latheef
Having Registered office at
No.67, Amma Bagyam Street, Thiruvalluvar Nagar,
Mugalivakkam,
Chennai 600 125.
And having Depot and Working for gain at
ICEBERG WALNUT FOODS (I) Pvt Ltd.,
811, Mount Road (Annasalai)
Vummudiar Shopping Complex,
Chennai 600002. .. Plaintiff
vs
Iceberg Icecreams
Regus, Tower D,
Rmz Infinity,
Old Madras Road,
Bangalore – 560016
Email : [email protected] ...Defendant
Prayer:Civil Suit filed under Order IV Rule I of the O.S.Rules read with
Order VII Rule 1 of CPC and read with Section 27, 28, 29, 134 and 135
of the Trademarks Act, 1999 read with Sections 51, 55, 62 of the
Copyright Act read with Section 7 of the Commercial Courts, Commercial
Division and Commercial Appellate Division of High Courts Act, No.4 of
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2016, praying for the following:
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a. A permanent injunction restraining the defendant by
themselves or their men, partners, proprietors, stockiest, dealers, servants,
agents, franchises, successors in interest, licensees, assignees,
representatives or any of them from in any manner directly or indirectly
infringing the plaintiff's registered Trademark “ICEBERG” by use of the
Trademark “ICEBERG” or any mark deceptively similar to that of the
plaintiff's registered Trade Mark or by use of identical or deceptively
similar trading style such as “ICEBERG ICECREAMS” or by
misdirecting the plaintiff's business to the defendants electronically or
otherwise, or in any other manner whatsoever;
b. A permanent injunction restraining the defendant by
themselves or their men, partners, proprietors, stockiest, dealers, servants,
agents, franchises, successors-in-interest, licensees, assignees,
manufacturers, representatives or any of them from in any manner
directly or indirectly passing off or enabling passing off of the defendant's
goods under the Trade Mark “ICEBERG” or any other deceptively
similar Trade Mark either through the use of deceptive websites such as
www.icebergicecreams.com or email ID such as
[email protected] or through any other franchise or outlet or
online marketing as and for the goods of the plaintiff under the illustrious
Trade mark “ICEBERG”;
c. A permanent injunction restraining the defendant by
themselves or their men, partners, proprietors, stockiest, dealers, servants,
agents, franchises, successors in interest, licensees, assignees,
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3
manufacturers, representatives or any of them from in any manner
directly or indirectly infringing the plaintiff's copyright over the artistic
work contained in their lettering style in the label 'ICEBERG' by use of
the ICEBERG Label or any label deceptively similar to that of the
plaintiff's artistic work or by use of identical or deceptively similar
trading style and/or artistic work in any other manner whatsoever;
d. The defendants including their agents and manufacturers, be
ordered to surrender to plaintiff for destruction all name boards, packing
materials, visiting cards, letterheads, printer bills, cartons, boxes, cups,
sticks, and other goods/websites/email addresses bearing the falsified
Trademark “ICEBERG” or any mark deceptively similar to that of the
plaintiff's registered Trade Mark “ICEBERG”;
e. The defendants be ordered to produce an account of profits
made by them by the unlawful use of the Registered Trade Marks of the
plaintiff either through imitative trade style/trademark/web address/email
address or otherwise and thereafter to pass a final decree upon
ascertaining the accounts, in favour of the plaintiff and against the
defendant;
f. directing the defendants to pay the costs of the suit.
For Plaintiff: Mr.N.Shrivatsan
for Mr.K.Rajasekaran
For Defendant : M/s.E.Santhanalakshmi
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JUDGMENT
In the suit is for infringement of the trademark “ICEBERG”,
the sole defendant has filed their counter by way of affidavit in the
interlocutory applications taken out by the plaintiff informing that the
defendant adopted the trademark “ICEBERG ICECREAM” in the year
2012 and commercially marketed the icecream in the said name through
the Proprietor concern under the name and style of “ICEBERG
ICECREAM”. Thereafter, M/s.Anjani Diary Food Product Limited was
incorporated under the Companies Act on 20.05.2015. The mark is
being used by the Company and the said market is distinct visually in
colour, font, size and design pattern.
2.From the counter, it appears that M/s.Anjani Diary Foods
Private Limited is the person, who has to defend the case and not the
“ICEBERG ICECREAMS” who is shown as the sole defendant in this
case. The plaintiff, after considering the averments made in the counter
has taken adjournment to amend the cause title and proceed against the
proper party. However, even after lapse of one year, the plaintiff has not
taken any measure to proceed against the proper party.
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3.Learned counsel for the plaintiff submits that due to
pandemic, though he has informed the plaintiff, the plaintiff is not able to
provide necessary particulars and documents for carrying out the
amendment.
4.On going through the averments in the plaint and the
averments in the counter affidavit filed by the sole defendant, this Court
finds that the subject matter of the suit viz., the trademark “ICEBERG
ICECREAM” is registered and valid under class 30 and 32 by the
plaintiff and registered under class 35 for M/s.Anjani Diary Foods
Private Limited. The said M/s.Anjani Diary Foods Private Limited is not
before this Court. Hence, this Court is of the opinion that the suit is to be
dismissed for proceeding against a wrong person, with liberty to the
plaintiff to proceed against M/s.Anjani Diary Foods Private Limited,
which is the registered proprietor of “ICEBERG ICECREAM” under
class 35, if so advised. Accordingly, C.S.No.485 of 2019 is dismissed.
The connected applications are closed. No order as to costs.
29.07.2021
vri
DR.G.JAYACHANDRAN,J.
http://www.judis.nic.in
Vri
C.S.No.485 of 2019
and
O.A.Nos.765 to 767 of 2019,
A.No.5956 of 2019
29.07.2021
http://www.judis.nic.in
