Madras High Court
Mr.A.D.Padmasingh Isaac vs Aachi Nagarathar Veg Restaurant on 10 August, 2022
C.S.(Comm.Div.) No.79 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
C.S.(Comm.Div.) No.79 of 2022
and O.A.Nos.234, 235 of 2022
1.Mr.A.D.Padmasingh Isaac
Proprietor,
Aachi Spices and Foods
Old No.4, New No.181/1,
6th Avenue, Thangam Colony,
Anna Nager, 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
3.M/s.Heavenly Foods Pvt Ltd.,
No.1926, 34th Street, I Block,
Ishwarya Colony, Anna Nagar West,
Chennai - 600 040
Represented by its Director
Mrs.Shiny Ashwin ... Plaintiffs
vs.
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C.S.(Comm.Div.) No.79 of 2022
Aachi Nagarathar Veg Restaurant
No.6, GST Road,
Mamandur,
Near Laurel Mall,
Chengalpet - 603 111. ... Defendant
PRAYER: Plaint filed under Order IV Rule 1 of the Original Side Rules
And Order VII Rule 1 of the CPC Read With Sections 27(2), 29, 134 and
135 of the Trademarks Act, 1999, prayed for Judgment and Decree:-
(a) Granting a permanent injunction, restraining the defendant, by
himself, his servants, agents, distributors, or anyone claiming through them
from manufacturing, selling, advertising and offering for sale or providing
services using the name AACHI NAGARATHAR VEG RESTAURANT or
any other similar Trademark name or similar sounding expression in any
media and use the same board, invoices, letter heads and visiting cards or by
using any other Trademark / name which is in anyway visually, and
deceptively or phonetically similar to the 1st plaintiff's Trademark / name
AACHI / AACHI CHETTINAD RESTAURANT / AACHI KITCHEN and
use the same in pouches, packets or use the mark in invoices, letter heads and
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C.S.(Comm.Div.) No.79 of 2022
visiting cards, websites or internet advertisements or part of their restaurant
name any other trade literature or Menu card by using any other trade mark
which is in any way visually, or phonetically similar to the plaintiffs'
registered Trade Mark Nos.838786, 1116254, 1479159, 1715718 & 2965624
or in any manner infringing the 1st plaintiff's registered Trade Marks referred
herein.
(b) Granting a permanent injunction, restraining the defendant, by
itself, its agents or servants or anyone claiming through or under him any
business marketing, selling advertising using in trade literature, menu cards,
invoices, name boards, website, internet advertisements the mark / name
"AACHI NAGARATHAR VEG RESTAURANT" in relation to the
Restaurant or with respect to or any other food preparation or on any other
business the impugned trademark / name which is in any manner deceptively
or phonetically confusingly similar to the plaintiffs Trade Mark / name
AACHI / AACHI CHETTINAD RESTAURANT / AACHI KITCHEN or in
any other manner pass off their hotel, business or goods as and for that of the
plaintiffs.
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C.S.(Comm.Div.) No.79 of 2022
(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
"AACHI NAGARATHAR VEG RESTAURANT" or other identical trade
mark used in the pouches and packets bearing the word AACHI / AACHI
CHETINAD RESTAURANT / AACHI KITCHEN.
(d) Directing the Defendant to render an account of profits made by
them by the use of the impugned Trademark AACHI NAGARATHAR VEG
RESTAURANT on the service referred and decree the suit for the profits
found to have been made by the Defendant, after the Defendant has rendered
accounts.
(e) Directing the defendant to pay to the plaintiffs the costs to the suit.
For Plaintiffs : Mr.Gladys Daniel
For Defendant : Set Ex parte
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C.S.(Comm.Div.) No.79 of 2022
**********
JUDGMENT
The suit was filed seeking relief in respect of alleged trademark
infringement and passing off. Suit summons was served on the defendant on
12.07.2022. In spite of service of suit summons and the name of the
defendant being printed in the cause list, there was no representation for the
defendant. Therefore, the defendant was set ex parte on 26.07.2022.
2. The plaintiffs examined Mr.B.Gnanasambandam, its General
Manager - L & S, as P.W.1. In course of the examination in chief of P.W.1,
32 documents were exhibited as Exs.P1 to P32.
3. Learned counsel for the plaintiffs points out that the mark AACHI is
in use from 1995 and that word and device mark registrations were obtained
over time in multiple classes. As regards the restaurant business, it is stated
that registration was obtained on 30.07.2008 under class 43. In this regard,
my attention is drawn to Exs.P26 and P27. On examining Ex.P26, it is
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C.S.(Comm.Div.) No.79 of 2022
evident that the registration is for the word mark AACHI KITCHEN. The
registration is valid up to 30.07.2028 and the certificate indicates use from
29.01.1999. Learned counsel also invites my attention to the photographs of
the name boards of the defendant, which were exhibited as Ex.P32. The said
exhibit also includes an invoice of the defendant. These documents evidence
use of the trade name AACHI NAGARATHAR VEG RESTAURANT by the
defendant. Since the plaintiff has a word mark registration in respect of the
identical business, the use of the impugned mark is infringing. The plaintiffs
have also placed on record sample sales invoices as Ex.P21 and sample
advertisement invoices as Ex.P22. In addition, a certified copy of the
Chartered Accountant's certificates dated 02.03.2017 and 20.07.2020 were
exhibited as Ex.P20. Therefore, the plaintiffs have established reputation and
goodwill. Consequently, the plaintiffs are also entitled to relief in relation to
passing off. As regards the relief of rendition of accounts, in the absence of
the defendant, the accounts are unavailable and it is not possible to compute
profits or determine the additional Court fees. Therefore, the said relief is
rejected. The plaintiffs are also entitled to costs on the loser pays principle.
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C.S.(Comm.Div.) No.79 of 2022
4. In the result, C.S.(Comm.Div.) No.79 of 2022 is decreed in terms of
prayers (a), (b) and (c) of paragraph 43 of the plaint. In addition, the
defendant is directed to pay a sum of Rs.1,50,000/- (Rupees One lakh Fifty
Thousand only) as costs to the plaintiffs towards Court fees, reasonable
lawyer's fees and other expenses. Consequently, O.A.Nos.234, 235 of 2022
are closed.
10.08.2022
rna
Index : Yes / No
Internet : Yes / No
Plaintiff's witness:
P.W.1 - B.Gnanasambandam.
Documents exhibited by the plaintiffs:
Exhibits Documents
Ex.P1 Original Authorization letters dated 28.07.2022.
Ex.P2 Original board resolution dated 12.04.2021.
Ex.P3 Printout of list of products manufactured and marketed by the
plaintiffs bearing the trademark AACHI (under Section 65B of
the Evidence Act, 1872).
Ex.P4 Photocopy of the Certificate of incorporation of Aachi Masala
Foods P Ltd. Dated 30.06.2006 (I will produce the originals at
the time of arguments).
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C.S.(Comm.Div.) No.79 of 2022
Exhibits Documents
Ex.P5 Photocopy of the Certificate of Commercial Tax Registration of
Aachi Masala & Foods (P) Ltd., dated 10.07.2006 (I will
produce the originals at the time of arguments).
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 (I will produce the
originals at the time of arguments).
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 (I will produce the originals at the
time of arguments).
Ex.P8 Photocopy of the Trade Mark License user Agreement between
Mr.A.D.Padmasingh Isaac trading as Aachi Spices and Foods
and Aachi Masala Foods Pvt Ltd dated 01.04.2007 (I will
produce the originals at the time of arguments).
Ex.P9 Photocopy of the Certificate of incorporation of Aachi Spices
and Foods P Ltd. Dated 17.03.2010 (I will produce the originals
at the time of arguments).
Ex.P10 Photocopy of the Memorandum of Association of Aachi Spices
and Foods P Ltd. Dated 06.03.2010 (I will produce the originals
at the time of arguments).
Ex.P11 Photocopy of the Trade Mark License user Agreement between
Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt Ltd
dated 21.04.2010 (I will produce the originals at the time of
arguments).
Ex.P12 Photocopy of the Trade Mark License user Agreement between
Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods P Ltd
dated 21.04.2010 (I will produce the originals at the time of
arguments).
Ex.P13 Photocopy of the Trademark License user Agreement between
Mr.A.D.Padmasingh Isaac and Aachi Masala Foods P Ltd.,
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C.S.(Comm.Div.) No.79 of 2022
Exhibits Documents
dated 04.03.2020 (I will produce the originals at the time of
arguments).
Ex.P14 Photocopy of the Trademark License user Agreement between
Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt
Ltd., dated 04.03.2020 (I will produce the originals at the time
of arguments).
Ex.P15 Printouts of the Certificate of Incorporation of M/s.Heavenly
Foods (P) Ltd., and Memorandum and Articles of Association
dated 01.04.2014 (under Section 65B of the Evidence Act,
1872).
Ex.P16 Trade Mark License user Agreement between
Mr.A.D.Padmasingh Isaac, Aachi Spices and Foods and
Heavenly Foods (P) Ltd dated 11.08.2014.
Ex.P17 Certified copy of Plaintiffs Advertisement in RITZ Magazine.
Ex.P18 Photocopy of the Registration Certificates of the mark AACHI
in various countries around the world (I will produce the
originals at the time of arguments).
Ex.P19 Photocopy of the Madrid Protocol registration in classes 29, 30,
43 with respect to the Trademark AACHI (word) designating
107 & 117 countries valid and subsisting as on date (I will
produce the originals at the time of arguments).
Ex.P20 Certified copy of the chartered accountant certificates dated
02.03.2017, 20.07.2020.
Ex.P21 Certified copy of the sample sales invoices for the year 2000 to
2020.
Ex.P22 Certified copy of the sample advertisement invoices and
expenses for the years 1999 - 2020.
Ex.P23 Photocopy of the legal use certificate of Trade Mark No.838786
in class 30 dated 29.01.1999 (I will produce the originals at the
time of arguments).
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C.S.(Comm.Div.) No.79 of 2022
Exhibits Documents
Ex.P24 Photocopy of the legal use certificate of Trade Mark
No.1116254 in class 30 dated 03.07.2002 (I will produce the
originals at the time of arguments).
Ex.P25 Photocopy of the legal use certificate of Trade Mark
No.1479159 in class 30 dated 17.08.2006 (I will produce the
originals at the time of arguments).
Ex.P26 Photocopy of the legal use certificate of Trade Mark
No.1715718 in class 43 dated 30.07.2008 (I will produce the
originals at the time of arguments).
Ex.P27 Photocopy of the legal use certificate of Trade Mark
No.2965624 in class 43 dated 18.05.2015 (I will produce the
originals at the time of arguments).
Ex.P28 Printouts of the order passed by trademark Trial and Appellate
Board, United states patent and trademark office dated
13.09.2016 (Under Section 65B of the evidence Act, 1872).
Ex.P29 Printouts of the order passed by the Australian Trademark office
in an opposition filed by the 1st plaintiff (Under Section 65B of
the evidence Act, 1872).
Ex.P30 Printout of AACHI KITCHEN name board (Under Section 65B
of the evidence Act, 1872).
Ex.P31 Original AACHI KITCHEN menu card.
Ex.P32 Photograph of the defendant's name board and invoice (Under
Section 65B of the evidence Act, 1872).
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C.S.(Comm.Div.) No.79 of 2022
SENTHILKUMAR RAMAMOORTHY,J
rna
C.S.(Comm.Div.) No.79 of 2022
and O.A.Nos.234, 235 of 2022
10.08.2022
https://www.mhc.tn.gov.in/judis
