Madras High Court
Mr.A.D.Padmasingh Issac vs Mr.Peter Selvaraj on 4 April, 2022
C.S.(Comm.Div.) No.13 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
C.S.(Comm.Div.) No.13 of 2021
and
O.A.Nos.397 and 398 of 2021
and
A.No.2285 of 2021
1.Mr.A.D.Padmasingh Issac
Proprietor,
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 Private Limited
No.1926, 34th Street, I Block,
Ishwarya Colony, Anna Nagar West,
Chennai - 600 040
Represented by its Director
Mr.Ashwin Pandian ... Plaintiffs
vs.
Mr.Peter Selvaraj ... Defendant
PRAYER: Plaint filed under and Order IV Rule 1 of the Original Side Rules
and Order VII Rule 1 of the CPC, Sections 27(2), 29, 134 & 135 of the
Trademarks Act, 1999 and Section 7 of the Commercial Courts,
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C.S.(Comm.Div.) No.13 of 2021
Commercial Division and Commercial Appellate Division of High Courts
Act 2015 (Act No.4 of 2016) prayed for Judgment and Decree:-
(a) Granting a permanent injunction, restraining the defendant, by
itself, its servants, agents, distributors, or anyone claiming through them
from manufacturing, selling, advertising and offering for sale using same
or similar label, get up, and colour scheme used by the defendant under
trademark 'Aashir' and device as shown in Document No.2 or in relation
to any masala items and use the same pouches, packets of masalas and
spices or any other goods or by using any other Trademark which is in
any way visually, and deceptively similar to the plaintiffs' registered
Trademark "AACHI MASALA KULAMBU CHILLY POWDER" label under
No.1318495 or by using any other Trademark which is in any way
visually, and deceptively similar to the plaintiffs' said registered
Trademark or in any manner infringe the plaintiffs' registered Trademark.
(b) Granting a permanent injunction, restraining the defendant, by
itself, its servants, agents, distributors, or anyone claiming through them
from manufacturing, selling, advertising and offering for sale using same
or similar get up, and colour scheme and the mark AASHIR used by the
Defendant shown in Document No.2 or by using any other trademark
which is in any way visually or deceptively similar to the plaintiffs'
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C.S.(Comm.Div.) No.13 of 2021
Trademark "AACHI MASALA KULAMBU CHILLY POWDER" label as shown in
Document No.1 or AACHI 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
and deceptively similar to the plaintiffs' Trademarks "AACHI MASALA
KULAMBU CHILLY POWDER" as shown in Document No.1 or AACHI in any
manner pass off the plaintiffs goods.
(c) 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 'Aashir' and packets in the Color 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 'Aashir' and packets in the
Color Scheme 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:
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C.S.(Comm.Div.) No.13 of 2021
(e) Directing the defendant to pay to the plaintiffs the cost of the
suit.
For Plaintiffs : Ms.T.Hemalatha
For Gladys Daniel.
**********
JUDGMENT
The suit is filed for permanent injunctions restraining infringment
of the plaintiff's registered Trademark "AACHI MASALA KULAMBU CHILLI
POWDER", for restraining passing off and for ancillary remedies such as
direction for surrender of infringing material, condition of accounts and
for a decree for profits on such basis.
2. Upon service of suit summons on 20.07.2021, the defendant did
not enter appearance in the suit. Consequently, by order dated
23.03.2022, the defendant was set ex-parte. Thereafter, the matter was
posted for recording the evidence of the plaintiff. The plaintiff examined
V.Gnanasambandam, the General Manager L&S of the second plaintiff, as
P.W.1. 23 documents were exhibited through P.W.1 as Exhibits P1 to P23.
These documents include the list of products manufactured and
marketed by the plaintiffs under the Trademark "Aachi", Legal user
Certificate of Trademark No.1318495 in class 30, dated 01.11.2004
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C.S.(Comm.Div.) No.13 of 2021
(Ex.P22), the Trademark licence user agreements between the proprietor
of the trademark, the first plaintiff and the second plaintiff (Exs.P8 to
P14), sample invoices and advertisement invoices (Exs.P18 and P19), the
mark AACHI (Ex.P20) and the plaintiff's label (Ex.P21) and the defendant's
label (Ex.P23).
3. On examining the evidence and comparing the plaintiffs'
trademark with defendant's mark, it is evident that they are both visually
and phonetically similar. As regards the label also, the colours used and
the over all appearance is such that the defendant's label is deceptively
similar to that of the plaintiff. Therefore, the plaintiff is entitled to the
reliefs prayed for at prayers (a), (b) and (c) of paragraph 35 of the plaint.
As regards the relief prayed for as prayer (d) of paragraph 35, on account
of the fact that the defendant was set ex-parte, the accounts of the
defendant are not available. Consequently, the profits earned by the
defendant cannot be ascertained even for the purpose of paying the
additional court fee. Consequently prayer (d) is rejected. Since the
plaintiff has succeeded in the suit, the defendant is also liable to pay
costs. The defendant shall pay costs in a sum of Rs.2 lakhs, which shall
include court fee, lawyer's fees and other expenses .
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div.) No.13 of 2021
4. In the result, the suit is decreed in terms of prayers (a), (b) and
(c) of paragraph 35. The defendant shall also pay costs of Rs.2 lakhs,
which shall include court fee, lawyer's fees and other expenses.
Consequently, connected O.A.Nos.397 and 398 of 2021 and A.No.2285
of 2021 are closed.
04.04.2022
nvi
Index : Yes / No
Internet : Yes / No
Plaintiffs' Witness: P.W.1 - B.Gnanasambandam
Documents:exhibited by the plaintiffs:
Exhibit No. Exhibits
Ex.P1 Original Authorization letters dated 28.03.2022
Ex.P2 Original Borad Resolution dated 12.04.2021
Ex.P3 Printout of list of products manufactured and marketed by
the plaintiffs bearing the trademark AACHI
Printout taken from the computer for which certificate
under Section 65B of Indian Evidence Act is filed.
Ex.P4 Photocopy of the Certificate of incorporation of Aachi
Masala Foods P.Ltd dated 30.06.2006 (Compared with
Original)
Ex.P5 Photocopy of the Certificate of Commercial Tax
Registration of Aachi Masala & Foods (P) Ltd dated
10.07.2006. (Compared with Original)
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C.S.(Comm.Div.) No.13 of 2021
Exhibit No. Exhibits
Ex.P6 Photocopy of the Dissolution Deed between Mrs.Rani
Pandian and the Mr.a.D.Padmasingh Isaac dissolving the
partnership firm, Naveen Products dated 31.03.2007.
(Compared with Original)
Ex.P7 Photocopy of the Certificate of Commercial Tax
Registration and Central Sales Tax of Aachi Spices & Foods
dated 28.12.2006 and 03.01.2007. (Compared with
original)
Ex.P8 Photocopy of the Trademark License user Agreement
between Mr.A.D.Padmasingh Isaaac trading as Aachi Spcies
and Foods and Aachi Masala Foods Pvt Ltd dated
01.04.2007. (Compared with Original)
Ex.P9 Photocopy of the Memorandum of Association of Aachi
Spices and Foods P.Ltd. dated 06.03.2010. (Compared with
Original)
Ex.P10 Photocopy of the Certificate of incorporation of Aachi
Spices and Foods P.Ltd dated 17.03.2010 (Compared with
Original)
Ex.P11 Photocopy of the Trademark License user Agreement
between Mr.A.D.Padmasingh Isaac and Aachi Spices and
Foods Pvt Ltd dated 21.04.2010 (Compared with Original)
Ex.P12 Photocopy of the Trademark License user Agreement
between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods
P. Ltd dated 21.04.2010 (Compared with Original)
Ex.P13 Photocopy of the Trademark License user Agreement
between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods
P Ltd dated 04.03.2020 (Compared with Original)
Ex.P14 Photocopy of the Trademark License user Agreement
between Mr.A.D.Padmasingh Isaac and Aachi Spcies and
Foods Pvt Ltd, dated 04.03.2020. (Compared with Original)
Ex.P15 Certified copy of Plaintiff's Advertisement in RITZ Magazine
Ex.P16 Photocopies of the Registration Certificates of the mark
AACHI in various countries around the world. (Compared
with Original)
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C.S.(Comm.Div.) No.13 of 2021
Exhibit No. Exhibits
Ex.P17 Photocopy of the Madrid Protocol Registration in classes
29, 30, 43 with respect to the Trademark AACHI (Word) &
(Device) designating 107 &117 countries valid and
subsisting as on date. (Compared with original)
Ex.P18 Certified copies of the Sample Sales Invoices for the years
2007-2020
Ex.P19 Certified copy of the sample Advertisement Invoices and
Expenses for the years 1999-2020.
Ex.P20 Certified copy of the Chartered Accountant Certificates
Ex.P21 Original Plaintiff's Label Aachi Kulambu Chilly Masala
Ex.P22 Photocopy of the Legal Use Certificate of Trademark
No.1318495 in Class 30, dated 01.11.2004 (Compared
with original)
Ex.P23 Printout of the Defendants'Label Aashir Kulambu Chilly
Masala. Ex.P23 is the printout taken from the computer for
which certificate under Section 65B of Indian Evidence Act
is filed.
Defendant's Witness and Documents:
-NIL-
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C.S.(Comm.Div.) No.13 of 2021
SENTHILKUMAR RAMAMOORTHY,J
nvi
C.S.(Comm.Div.) No.13 of 2021and
O.A.Nos.397 and 398 of 2021and
A.No.2285 of 2021
04.04.2022
https://www.mhc.tn.gov.in/judis
