Madras High Court
A.D.Padmasingh Issac vs Ra.Yeshwaran on 11 April, 2022
C.S.(Comm. Div.) No.28 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.04.2022
Coram:
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
C.S.(Comm. Div.) No.28 of 2022 &
O.A.Nos.95 & 96 of 2022 &
A.No.648 of 2022
1. 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.
RA.Yeshwaran,
Proprietor,
Ray Foods,
No.13, Kuppamani Thope,
Red Hills, Chennai-600 052. .. Defendant
This Civil Suit has been filed under IV Rule 1 of Original Side Rules
and Order VII Rule 1 of CPC read with Sections 27(2), 29, 134 and 135 of the
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C.S.(Comm. Div.) No.28 of 2022
Trade Marks Act, 1999, praying to grant a judgment and decree on the
following terms: (a) granting a permission injunction restraining the Defendant,
by itself, its servants, agents, distributors, or anyone claiming through them
from manufacturing, selling, advertising and offering for sale using the oval
device Nayagi as shown in Document No.2 or any one of the pouches or other
similar device mark or Trade name or similar sounding expression in any media
in relation to 'Kulambu chilli powder, Sambar powder, Chicken 65 masala,
Chilli Powder, Turmeric powder, Coriander powder, Idly Chillip power,
Chicken masala, Mutton masala, Fish fry masala, Black pepper powder and
Garam masala' or 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' trademark
Aachi as shown in Document No.1 or in any of the pouches therein and in any
manner infringe any of the Plaintiffs' registered Trademarks under
No.1025302, 1025304, 1318493, 1318495, 1595537, 17028840, 1720892,
1731901, 1731906, 1731907, 1731915, 1731953, 3352398, 3352399, 3352400,
3352401, 3352402, 3352403, 33524504, 3352405, 4951475, 4951476,
4951477, 4951478, 4951480, 4951482, 4951484, 4951485, 4951488.; (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 used by the Defendants in the oval device as shown
in Document No.2 or any of the pouches therein by using any other trade mark
which is in any way visually or deceptively similar to the Plaintiffs' trademark
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C.S.(Comm. Div.) No.28 of 2022
as shown in Document No.1 or Aachi or any of the pouches therein in relation
to any masal4a items and use the same pouches for Kulambu chilli powder,
Sambar powder, Chicken 65 masala, Chilli powder, Turmeric powder,
Coriander powder, Idly Chilli powder, Chicken masala, Mutton masala, Fish
fry masala, Black pepper powder and Garam masala' or any masala items and
use the same pouches, packets of above 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 as shown in Document No.1 or
Aachi any of the pouches therein in any manner pass off the Plaintiffs' goods.;
(c) directing 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
'NAYAGI' and packets in the Colour Scheme and Get up as shown in
Document No.2 or other deceptively similar trademark 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 'NAYAGI' 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.
For Plaintiffs : M/s.Gladys Daniel
For Defendant : M/s.M.Balasubramanian
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C.S.(Comm. Div.) No.28 of 2022
JUDGMENT
This suit was filed for orders of permanent injunction in respect of
alleged infringement of trademark and passing off. The plaintiff had also
prayed for ancillary remedies such as surrender of infringing materials for
destruction, rendition of accounts and a decree of profits on such basis and
costs.
2. The parties have entered into a memorandum of compromise dated
29.03.2022. On perusal, it is evident that both the plaintiffs, the defendant and
their respective counsel have signed the memorandum of compromise. By
virtue thereof, the defendant has submitted to a decree in terms of prayers [a]
and [b] of paragraph-44 of the plaint. The plaintiffs have relinquished their
claim for relief in terms of prayers [c], [d] and [e] of paragraph-44 of the plaint.
Both parties have also accepted other terms and conditions in relation to the
use of specific marks, labels and the like. On examining the memorandum of
compromise, there is no legal impediment to issue a decree in terms thereof.
3. In addition, the defendant makes a request that he should be permitted
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C.S.(Comm. Div.) No.28 of 2022
to sell the unsold inventory on which the infringing mark is used. It is
submitted that such sale would be concluded within a maximum of three
months from today. The plaintiffs oppose this request but are agreeable to a
period of one month for disposal of existing inventory. Upon considering the
contentions on this issue, a period of two months for the disposal of unsold
inventory bearing the infringing mark would be reasonable in the facts and
circumstances. The permanent injunctions shall operate subject to a carve-out
or exemption to this limited extent.
4. Accordingly, subject to the defendant's limited right to dispose of only
the unsold inventory bearing the infringing mark on or before 10.06.2022,
C.S. (Comm. Div.) No.28 of 2022 is decreed in terms of the Memorandum of
Compromise dated 29.03.2022, which shall form an integral part thereof. In
view of the settlement between the parties, there will be no order as to costs.
Consequently, connected applications are closed.
11.04.2022
Index : Yes/No
Internet: Yes/No
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C.S.(Comm. Div.) No.28 of 2022
SENTHILKUMAR RAMAMOORTHY, J
kal
C.S.(Comm. Div.) No.28 of 2022 &
O.A.Nos.95 & 96 of 2022 &
A.No.648 of 2022
11.04.2022
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