Madras High Court
Mr.A.D.Padmasingh Isaac vs Ganapathi Cottage Industries on 23 September, 2021
C.S.No.829 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.829 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.
Ganapathi Cottage Industries,
Ayanavaram, Chennai - 600 023. ...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
Trademarks 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
manufacturing, selling, advertising and offering for sale using the trade mark
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C.S.No.829 of 2008
Ganapathi in "AACHI" or any other similar sounding expression 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 phonetically similar to the
plaintiffs' trade mark "AACHI" or in relation to any readymade Dosai Idly
Wet Mix items and use the same pouches, packets or use the mark in
invoices, letter heads and visiting cards or any other trade literature or by
using any other trade mark which is in any way phonetically similar to the
Plaintiffs' registered Trademark Nos.922594, 922595, 1372439, 838786,
976559 or in any manner infringe the Plaintiff's registered Trademark.
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 the name Ganapathi in AACHI.
c) directing the Defendant to render an account of profits made by
them by the use of the impugned trademark as shown in Document No.2 on
the goods referred and decree the suit for the profits found to have been
made by the Defendants, after the Defendants have rendered accounts.
d) directing the Defendant to pay to the plaintiffs the costs of the
suit.
For Plaintiffs : Ms.T.Hemalatha for
Mrs.Gladys Daniel
For Defendant : Set exparte
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C.S.No.829 of 2008
JUDGMENT
The 1st plaintiff, who is the registered proprietor of the word mark
"AACHI" and the 2nd plaintiff, which has been engaged in manufacture of
various food products, particularly, relating to masala powders used in
making of South Indian food items like Sambar, Rasam, Briyani etc., has
sued for injunction restraining the defendant from using the mark "AACHI"
along with the prefix "Ganapathi in AACHI" for its Idly and Dosa batter,
contending that such said user would amount infringement of its trademark,
since the 1st plaintiff has got a registration for using the word mark "AACHI"
for use in masala powders, spices and preparations made from cereals. Even
as early as on 12.02.2000, the said registration has been renewed as on date.
It is claimed that the 1st plaintiff has permitted the 2nd plaintiff to use the said
mark “AACHI”.
2.The plaintiffs would claim that as prior users as well as a
registered holders of the trademark, they are entitled to injunctive reliefs. A
decree for mandatory injunction directing the defendant to surrender all the
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C.S.No.829 of 2008
packing material and advertisement material etc. has also been sought for,
apart from the reliefs of accounting and costs.
3.The defendant in the suit was served on 30.11.2010. Despite
such service, the defendant did not chose to appear to contest the suit.
Therefore, the defendant was called absent and set exparte on 06.07.2021,
when this Commercial Division took cognizance of the suit.
4.One Mr.B.Gnanasambandam has been examined as P.W.1. He
has produced various pouches as exhibits to demonstrate that the plaintiff
has been using the trade name "AACHI" in almost all of its products. The
pouch used by the defendant for packing its products has been filed as
Ex.P11. The trademark license user agreement between the 1st plaintiff and
the 2nd plaintiff has been produced as Ex.P10. The legal user certificate has
been produced as Ex.P12, while the registration certificate has been
produced as Ex.P6. Mr.B.Gnanasambandam has also spoken about the
likelihood of confusion among the mind of the consumers, if the defendant is
allowed to use the trademark "AACHI" particularly in its product, which is
also a food product falling within the same clause. A perusal of the evidence
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C.S.No.829 of 2008
shows that the plaintiff is a registered holder of the trademark and the said
trademark is being used by the plaintiff in various edible products, including
the products made out of cereals.
5.In the light of the evidence available, I am convinced that the
plaintiff is entitled to the reliefs sought for in the suit. Therefore, the suit is
decreed as prayed for. No costs. Consequently, connected applications, if
any, are closed.
23.09.2021
kkn
Internet:Yes
Index:No
Speaking
List of witness and documents filed on the side of the plaintiffs:
S.No Description of Documents Exhibits
1 (Series 2 Nos.) are the original Authorization letters for 1st & 2nd Ex.P1
plaintiffs.
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C.S.No.829 of 2008
S.No Description of Documents Exhibits
2 Certified copy of Plaintiffs advertisement in RITZ Magazine. Ex.P2
3 Original Plaintiffs' label "AACHI MASALA KULAMBU CHILLY Ex.P3
MASALA MIXED MASALA".
4 (Series 44 Nos.) are the originals of the Plaintiffs' Labels. Ex.P4
5 (Series 15 nos.) are the photocopies of the Legal use certificate of Ex.P5
Trademark.
6 (Series 4 nos.) are the photocopies Registration Certificate of Ex.P6
trademark.
7 The photocopy of the certificate of Incorporation of Nazareth Foods Ex.P7
Private Limited dated 23.07.2021
8 Photocopy of the Certificate of Commercial Tax Registration of Aachi Ex.P8
Masala & Foods (P) Ltd., dated 10.07.2006.
9 (Series 3 nos.) are the photocopies of the Certificate of Commercial Ex.P9
Tax Registration and Central Sales Tax of Aachi Spices & Foods dated
28.12.2006 and 03.01.2007.
10 The photocopy of the Trademark License user Agreement between Ex.P10
Mr.A.D.Padmasingh Isaac trading as Aachi Spices and Foods and
Aachi Masala Foods Pvt. Ltd. dated 01.04.2007.
11 The original Defendant's label plastic pouch AACHI READY MADE Ex.P11
DOSAI IDLY WET MIX
12 The copy of the legal user certificate in respect of the Trademark Ex.P12
AACHI under No.976559 in Class 30 (marked after comparing with
the original, verified and returned).
List of witness and documents filed on the side of the defendant:
Nil
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C.S.No.829 of 2008
R.SUBRAMANIAN, J.
KKN
C.S.No.829 of 2008
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C.S.No.829 of 2008
23.09.2021
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