Madras High Court
Creamline Dairy Products Limited vs Manger Foods Private Limited on 2 November, 2021
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2021
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.S.(Comm.Div) No.59 of 2021
and
O.A.Nos.567 and 568 of 2021,
A.No.3275 of 2021
Creamline Dairy Products Limited,
Having a place of business at
No: 4, Murugan Koil 1" Street,
Vivekananda Nagar, Kolathur,
Chennai-600 069, Tamil Nadu
Represented by its authorized signatory
Mr. K Sriram ...Plaintiff
Versus
1. Manger Foods Private Limited
Having its registered office at
Villa No BV14, BCG Bungalows,
Ambedkar Road, Vennala, Near V Guard Corporate Office,
Ernakulam-682 028, Kerala.
Also at,
Memughom, Manced P.O.,
Ernakulam-686 664, Kerala
Represented by its Director
2. Cherub Dairy Products Private Limited,
Villa No BV14, BCG Bungalows,
Ambedkar Road, Vennala, Near V Guard Corporate Office,
Ernakulam-682 028, Kerala
http://www.judis.nic.in Represented by its Director. ...Defendants.
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Prayer: Civil suit filed under order VII Rule 1 of Civil Procedure
ode,1908 and order iv rule 1 of o.s. rules, 1956 read with sections 27,
134 and 135 of the Trade marks Act, 1999 a section 7 of the commercial
courts, commerical division and Commercial Appellate Division of High
Courts Act, No. 4 of 2016, praying for judgment and decree,
a) permanent injunction restraining the Defendants, its directors, key
managerial personnel, owners, servants, subordinates, representatives,
stockists, distributors, dealers, agents, third party manufacturer(s) and all
other persons claiming through or under it or acting on its behalf or
under its instructions from manufacturing, marketing, selling,
distributing, offering to sell or dealing in the impugned products or milk
and milk products or any similar goods or any other goods bearing the
impugned mark NEW JERSEY (with or without any other mark) or any
other mark/label identical with or similar to or in any manner comprising
of the JERSEY marks of the plaintiff.
b)permanent injunction restraining the Defendants, its directors, key
managerial personnel, owners, servants, subordinates, representatives,
stockists, dealers, distributors, agents and all other persons claiming
through or under it or acting on its behalf or under its instructions from
infringing in any manner the JERSEY Registered Marks of Plaintiff No.
1 bearing nos. 1074403, 1074405, 4272189, 4272190, 4272191 and
4272192, in any manner and from using in relation to the Impugned
Products or milk and milk products or any other goods for which the
JERSEY marks of the Plaintiff are registered or any goods similar to the
goods for which the JERSEY marks of the Plaintiff are registered, the
impugned mark NEW JERSEY (with or without any other mark) which
is identical with or similar to the JERSEY Registered Marks of the
Plaintiff and from manufacturing, selling, offering for sale, distributing,
advertising or dealing in milk, curds and milk related or similar goods or
any other goods bearing the impugned mark NEW JERSEY (with or
without any other mark);
c. A permanent injunction restraining the Defendants, its directors, key
managerial personnel, owners, servants, subordinates, representatives,
stockists, dealers, distributors, agents, third party manufacturers and all
other persons claiming through or under it or acting on its behalf or
http://www.judis.nic.inunder its instructions from committing the tort of passing off in any
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manner and from manufacturing, marketing, selling, advertising, offering
to sell or dealing in the Impugned Products or milk, curds and milk
related products or any similar goods or any other goods bearing the
impugned mark NEW JERSEY (with or without any other mark), or any
other mark/label identical with or similar to or in any manner comprising
of the JERSEY marks of the Plaintiff;
d. The Defendants, its directors, key managerial personnel, owners,
servants, subordinates, representatives, stockists, dealers, distributors,
agents and all other persons claiming through or under it or acting on its
behalf or under its instructions or acting in concert with it be ordered and
decreed to deliver up for destruction of all the Defendant No.1's
Impugned Products and goods, dies, articles, bottles, packets, labels,
cartons, packaging material, plates, ink, product literature, advertising
material paper and all other things used in connection with or intended to
be used in connection with the manufacture, marketing or sale of the
Impugned Products or any goods bearing the impugned mark NEW
JERSEY (with or without any other mark) or any other mark/label
identical or similar to the plaintiff' JERSEY marks;
e. The defendants be ordered and decreed to render a true and faithful
account of all the profits earned by it by using or selling the impugned
products and/or using impugned mark NEW JERSEY (with or without
any other mark) or any other mark/label identical or similar to the
plaintiff' JERSEY marks and the defendants be further ordered and
decreed to pay to the plaintiff such amount as may be found due on such
account being taken;
f. for costs of the entire proceedings.
For Plaintiff : Mr.Thriyambak J.Kannan
For Defendants : Mr.Prashant Rajagopal
http://www.judis.nic.in
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JUDGMENT
The suit filed for infringement of registered trademark 'New
Jersey' with pictorial representation. Interim injunction was granted on
21.09.2021 by this Court. Thereafter, the defendant had entered
appearance and represented through counsel that the respondent ceased
and desist from adopting the impugned trademark 'New Jersey' for its
product and it has started withdrawing the product which has already
been distributed and available with the retailers.
2.In continuation of the said oral submission, the first
defendant has filed a memo dated 02.11.2021 along with Annexure
which indicates the defendant has changed their label and mark as
'CHERUB' with pictorial representation and the word are written in a
unique and stylish manner.
3.Learned counsel for the plaintiff while accepting the change
of label and have no objection for the respondent using the said new
label, however brought to the notice of this court that even after the
interim order passed by this Court, the product of the defendant carrying
impugned trademark of the plaintiff is available in the market and to
http://www.judis.nic.in
substantiate the said plea invoice dated 29.10.2021 was produced.
4.This Court perused the affidavit cum undertaking and the
memo filed by the first defendant which explicitly say that the defendants
1 and 2 will not infringe the registered trademark of the plaintiff 'New
Jersey' for their product in any manner and undertake to carry on
business adopting the new changed label and mark 'CHERUB' submitting
to the decree in so far as prayer a, b and c, as sought by the plaintiff.
5.Learned counsel for the plaintiff agree for the same and for
foregoing the relief d, e and f , prayed for imposing cost.
6.Considering the submissions in the light of the affidavit cum
undertaking, this Court allow the suit in part and grant decree as prayed
in a, b and c. Since the defendant by way of affidavit has stated that they
have started withdrawing the products and nothing is circulated to the
market and they will not market their product with the impugned
trademark from the date of undertaking, this Court direct the defendant
to recall and destroy all the impugned materials within a period of ten
http://www.judis.nic.in
DR.G.JAYACHANDRAN,J.
VRI
days from today and in respect of prayer sought in e and f , since the
defendant has come forward to settle the matter amicably and submitted
to the decree in respect of prayer a, b and c, it is suffice to impose a
nominal costs of Rs.5,000/- (Rupees Five Thousand only) payable to
the plaintiff within a period of 30 days. The suit is allowed in terms of
compromise and as directed above. The connected applications are
closed.
02.11.2021
vri
http://www.judis.nic.in
C.S.(Comm.Div) No.59 of 2021
and
O.A.Nos.567 and 568 of 2021,
A.No.3275 of 2021
http://www.judis.nic.in
