Madras High Court
Cavinkare Pvt. Limited vs M/S.Mikado Chinn-Kun Foods on 23 March, 2022
C.S.No.267 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
C.S.No.267 of 2014
Cavinkare Pvt. Limited,
"Cavinville", 12, Cenotaph Road,
Teynampet, Chennai - 600 018.
rep. by its Executive & Authorized Signatory,
R.Thazhalan ... Plaintiff
vs.
M/s.Mikado Chinn-Kun Foods,
4/324, Uchampatty, Dindal Post,
Karimangalam Via Palacode Taluk,
Dharmapuri - 635 111
rep. by T.Chinna Samy ... Defendant
PRAYER: Plaint filed under and Order VII Rule 1 CPC Read with Order
IV Rule 1 OS Rules Read with Sections 27, 28, 29, 134 & 135 of the
Trademarks Act, 1999 prayed for Judgment and Decree:-
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C.S.No.267 of 2014
(a) a permanent injunction restraining the defendants, by itself, its
partners, men, servants, agents, distributors, stockiest, representatives or any
one claiming through or under them from in any manner infringing the
plaintiff's registered trademark MAA under No.1109946 in class 32 by
using a deceptively similar trademark MAA PLUS or any other trademark
deceptively similar to the plaintiff's registered trademark or in any other
manner whatsoever;
(b) a permanent injunction restraining the Defendants, by itself, its
partners, men, servants, agents, distributors, stockiest, representatives or any
one claiming through or under them from in any manner passing off and / or
enabling others to pass off the Defendants' products by manufacturing,
selling or offering to sell, distributing, displaying, printing, stocking, using,
advertising their products with a trademark MAA PLUS or any other
trademark which is identical or similar to the plaintiff's trademark MAA or
in any other manner whatsoever;
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C.S.No.267 of 2014
(c) the Defendant be ordered to surrender to plaintiffs for destruction
of all products, labels, cartons, dyes, blocks, moulds, screen prints, packing
materials and other materials bearing the trademark MAA PLUS or any
mark deceptively similar to plaintiffs' registered trademark MAA.
(d) a preliminary decree be passed in favour of the plaintiffs directing
the defendant to render account of profits made by use of trademark MAA
PLUS and a final decree be passed in favour of the plaintiffs for the amount
of profits thus found to have been made by the defendant after the latter
have rendered accounts;
(e) for costs of the suit.
For Plaintiff : Mr.R.Sathish Kumar
**********
JUDGMENT
The suit is filed to restrain the defendant from infringing the
plaintiff's registered trademark MAA under No.1109946 in class 32 by
using the deceptively similar trademark MAA PLUS. The plaintiff has also
prayed for an injunction restraining passing off and for ancillary relief such
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C.S.No.267 of 2014
as surrender of infringing material for destruction and for rendition of
accounts so as to obtain a decree for profits.
2. After obtaining permission from the Court, the plaintiff effected
substituted service on the defendant by making a paper publication on
22.02.2016. Consequently, the defendant was set ex parte by order dated
06.01.2022. Thereafter, the plaintiff was permitted to adduce oral evidence.
3. The plaintiff filed the affidavit of evidence of Mr.R.Thazhalan,
General Manager, Legal and Secretarial of the plaintiff, who was examined
as P.W.1. 6 documents were exhibited through P.W.1 as Exs.P1 to P6.
These documents include the certified copy of the trademark registration
certificate of the plaintiff under No.1109946 in class 32 for the trademark
MAA (Ex.P2); the original invoices for sale of products bearing registered
trademark MAA (Ex.P3 series); the print out of the plaintiff's soft drink
product bearing registered trademark MAA (Ex.P5); and the print out of the
defendant's soft drink product MAA PLUS (Ex.P6).
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C.S.No.267 of 2014
4. On the basis of the pleadings and the evidence adduced, the
plaintiff is entitled to a decree in terms of the reliefs prayed for in prayers
(a), (b), (c) and (e) of paragraph 21 of the plaint. As regards the relief
prayed for in prayer (d), since the defendant was set ex parte and did not
produce accounts, it is not possible to ascertain the profits or pay court fee
thereon. Therefore, prayer (d) of paragraph 21 of the plaint is rejected.
5. Accordingly, the suit is decreed in terms of prayers (a), (b) and (c)
of paragraph 21 of the plaint. As regards costs, the defendant shall pay
costs assessed in a sum of Rs.2,00,000/- (Rupees Two Lakhs only), which
shall include court fees, lawyer's fees and other costs.
23.03.2022
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Index : Yes / No
Internet : Yes / No
Plaintiff side Witness:
P.W.1 - R.Thazhalan
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C.S.No.267 of 2014
Plaintiff side Documents:
Exhibit No. Exhibits
Ex.P1 True copy of authorization on my behalf for representing the
plaintiff dated 12.05.2016.
Ex.P2 Certified copy of the trademark registration certificate of the
plaintiff under No.1109946 in class 32 for MAA dated
07.06.2022.
Ex.P3 Original invoices for sale of MAA products by plaintiff. (12
(Series) Nos.)
Ex.P4 Press clippings showing the news regarding the plaintiff's
(Series) products under the trademark MAA and the point of sale
posters. (mentioned in 65B certificate / affidavit) (8 Nos.)
Ex.P5 Printout of plaintiff's MAA soft drink product. (mentioned in
65B certificate / affidavit)
Ex.P6 Printout of defendant's MAA PLUS soft drink product.
(mentioned in 65B certificate / affidavit)
Defendants side Witness and Documents:
-NIL-
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C.S.No.267 of 2014
SENTHILKUMAR RAMAMOORTHY,J
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