Madras High Court
A D Padmasingh Isaac vs /15 on 20 September, 2024
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
C.S.(Comm.Div.) No.69 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2024
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
C.S.(Comm.Div.) No.69 of 2024
and O.A.Nos.234, 235 of 2024 &
A.Nos.1719 & 1721 of 2024
1. A D Padmasingh Isaac, Proprietor,
Aachi Spices and Foods,
Old No 4, New No. 181/1,
6th Avenue, Thangam Colony,
Anna Nagar, Chennai 600 040.
2. Aachi Masala Foods Private Limited,
No.1926, 34th Street, I Block,
Ishwarya Colony, Anna Nagar West,
Chennai 600040,
Represented by its Director
Mr.Ashwin Pandian.
3.M/s.Flora Foods
A Partnership Firm,
No.1926, 34th Street, I Block,
Ishwarya Colony, Anna Nagar West,
Chennai 600040
Represented by its Partner Mrs.Thelma Isaac. ... Plaintiffs
vs.
1/15
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div.) No.69 of 2024
1. AACHI Mess,
101, Palai East Coast Road,
Opposite to Government Polytechnic,
Next to Smart Palace,
Palayamkottai Road,
Tuticorin-628 008
and also at 4th street, Teachers Colony,
Indra Nagar, Tuticorin-628 008.
2. Google LLC,
1600, Amphitheatre Parkway,
Mountain View,
California 94043, USA. ... Defendants
(2nd defendant deleted as per order dated 23.08.2024
in memo dated 16.08.2024 in OA.Nos. 234 and 235/2024
and A.Nos.1719 and 1721/2024 in C.S(Comm.Div)No. 69/2024)
PRAYER: Plaint filed under Order IV Rule I of the Original Side Rules
And Order VII Rule 1 of the C.P.C. Read With Sections 27(2), 29, 134 and
135 of the Trade Marks Act, 1999 and prayed for Judgment and Decree:-
(a) granting a permanent injunction, restraining the 1 st Defendant, by
himself, his servants, agents, distributors, or anyone claiming through him
from manufacturing, selling, advertising and offering for sale or providing
services using the name 'AACHI MESS' or any other similar Trade Mark
name or similar sounding expression in any hotels, restaurant services,
2/15
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C.S.(Comm.Div.) No.69 of 2024
media, websites, mobile applications, social media platforms and internet
advertising and use the same in name board, invoices, letter heads and
visiting cards, websites, mobile applications, social media platforms and
internet advertising or by using any other trade mark/name which is in any
way visually or deceptively or phonetically similar to the 1st Plaintiff's trade
mark/name AACHI/AACHI CHETTINAD RESTAURANT/AACHI
KITCHEN/AACHI NAMMA KITCHEN/AACHI BHAVAN and use the
same in pouches, packets or use the mark in invoices, letter heads and
visiting cards, website and internet advertising 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, 5275581, 5274680 & 5446987 or in any manner infringing the 1st
Plaintiff's registered Trade Marks referred herein.
(b) granting a permanent injunction restraining the 1st 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,
3/15
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C.S.(Comm.Div.) No.69 of 2024
invoices, name boards, websites, mobile applications, social media platforms
and internet advertisements the mark/name 'AACHI MESS' in relating to
the Restaurant services 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/AACHI NAMMA KITCHEN/AACHI BHAVAN or in any
other manner pass off their hotel, business or goods as and for that of the
Plaintiffs.
c) mandatory injunction directing the 2nd Defendant to remove or take
down the name 'AACHI MESS' of the 1st Defendant from the business
listings in the webpages of the 2nd Defendant as reflected in the following
links:
https://www.google.com/search?q=aachi+mess+veetu+samayal+tuticorin&s
xsrf=APwXEddkqLXcJ2TZVLXRIXsXYZWiMSGDkA%3A16825064950
86&ei=wJJZI3yBKbA4EPIYSouA0&ved=0ahUKEwjN7eKPscfAhUm4DgG
HRUCCtcq4dUDCA8&uact=5&oq=aachi+mess+veetu+samayal+tuticorin&
4/15
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C.S.(Comm.Div.) No.69 of 2024
gslcp=Cgxnd3Mtd216LXNlcnAQAzlECCMQJzoHCCMQsAMQJzoNCAA
QRxDWBBDJAxCwAzoKCAAQRxDWBBCwAzoLCAAQigUQkgMQsAN
KBAhBGABQuyRYnydgry50AnABeACAAVyIAakBkgEBMpgBAKABAc
gBB8ABAQ&sclient=gws-wiz-serp,
in relation to the Restaurant services or with respect to any other food
preparation or on any other similar business or providing information,
menus and user reviews pertaining to such Restaurant services or with
respect to any other food preparation or on any other similar business in any
manner so as to cause confusion to the public with respect to the Plaintiff's
Trade Mark/name AACHI/AACHI CHETTINAD
RESTAURANT/AACHI KITCHEN/AACHI NAMMA
KITCHEN/AACHI BHAVAN.
(d) directing the Defendants 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 MESS' or other identical trade mark
5/15
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C.S.(Comm.Div.) No.69 of 2024
used in the pouches and packets bearing the word AACHI/AACHI
CHETTINAD RESTAURANT/AACHI KITCHEN/AACHI NAMMA
KITCHEN/AACHI BHAVAN.
(e) directing the Defendants to render an account of profits made by
them by the use of the impugned trademark 'AACHI MESS' on the service
referred and decree the suit for the profits found to have been made by the
Defendants, after the Defendants has rendered accounts:
(f) directing the Defendants to pay to the Plaintiffs the costs to the
suit;
For Plaintiffs : Ms.Gladys Daniel
D1 : Set ex parte on 11.07.2024
JUDGMENT
The suit was filed seeking relief in respect of alleged infringement of
the plaintiffs' trademarks by use of the infringing mark “AACHI MESS” in
relation to the restaurant operated by the 1st defendant. In spite of service of
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C.S.(Comm.Div.) No.69 of 2024
suit summons, the 1st defendant did not enter appearance. Consequently, the
1st defendant was set ex parte on 11.07.2024. The 2nd defendant entered
appearance through counsel and filed an affidavit asserting that the
infringing mark has been removed from its platform. On that basis, the
plaintiff filed a memo for the deletion of the 2nd defendant from the array of
parties. By order dated 23.08.2024, the 2nd defendant was deleted from the
array of parties. Since the 1st defendant had been set ex parte on 11.07.2024,
by order dated 06.09.2024, the matter was listed before learned Additional
Master No.IV for recording ex parte evidence on behalf of the plaintiffs.
2. The plaintiffs examined Mr.B.Gnanasambandam, a Director of the
2nd plaintiff, as P.W.1. In course of the examination-in-chief of P.W.1, 39
documents were exhibited as Exs.P1 to P39.
3. Learned counsel for the plaintiffs invited my attention to Ex.P25,
which is the legal use certificate in respect of Trade Mark No.1116254. She
pointed out that the document evidences use of the mark “AACHI
CHETTINAD RESTAURANT” from 01.01.1998. She also referred to the
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C.S.(Comm.Div.) No.69 of 2024
legal use certificate in respect of the word mark “AACHI KITCHEN” in
respect of restaurant and allied services in class 43 (Ex.P26). After pointing
out that several other trademarks, such as AACHI KITCHEN WITH A
TWIST and AACHI NAMMA KITCHEN were registered by the plaintiffs,
she referred to Ex.P36 and Ex.P37 as evidence of use of the infringing mark
by the defendants. She also pointed out that a cease and desist notice was
issued to the 1st defendant under Ex.P38.
4. Based on the pleading, the evidence adduced in support thereof and
the absence of pleadings and evidence to the contrary, the plaintiffs have
established a case for the grant of relief in terms of prayers (a), (b) and (d)
of paragraph 46 of the plaint. Since the 1st defendant has remained ex parte,
no useful purpose would be served in directing the said defendant to render
accounts and, in the absence thereof, computation of illegal profits and
additional court fee thereon is not feasible. Therefore, prayer (e) in
paragraph 46 is rejected. As the successful party, the plaintiffs are also
entitled to costs in respect of court fee, reasonable lawyer's fees and
expenses incurred in prosecuting the suit. In the aggregate, the sole
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C.S.(Comm.Div.) No.69 of 2024
remaining defendant is directed to pay a sum of Rs.3,00,000/- (Rupees
Three lakhs only) as costs to the plaintiffs.
5. In the result, the suit is decreed in terms of prayers (a), (b) and (d)
of paragraph 46 of the plaint. The sole remaining defendant is further
directed to pay a sum of Rs.3,00,000/- (Rupees Three lakhs only) as costs to
the plaintiffs towards court fees, lawyer's fees and other expenses.
Consequently, O.A.Nos.234 & 235 of 2024 and A.Nos.1719 & 1721 of
2024 are closed.
20.09.2024
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
kj
Plaintiffs' witness:
P.W.1 - Mr.B.Gnanasambandam
Documents exhibited by the plaintiffs:
Exhibits Documents
Ex.Pl (Series) The original authorization letters dated 21.08.2024.
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C.S.(Comm.Div.) No.69 of 2024
Exhibits Documents
(3 Nos)
Ex.P2 The original Board Resolution dated 25.07.2022.
Ex.P3 Printouts of the list of products manufactured and
marketed by the Plaintiffs bearing the trademark AACHI.
Ex.P4 The photocopy of the Certificate of incorporation dated
30.06.2006 of Aachi Masala Foods P Ltd. (Original is
produced, compared and returned to the plaintiff's
counsel.)
Ex.P5 The photocopy of the Certificate of Commercial Tax
Registration of Aachi Masala & Foods (P) Ltd dated
10.07.2006. (Original is produced, compared and
returned to the plaintiff's counsel.)
Ex.P6 The photocopy of the Dissolution Deed between Mrs.
Rani Pandian and Mr. A.D.Padmasingh Isaac dissolving
the partnership firm, Naveen Products dated 31.03.2007.
(Original is produced, compared and returned to the
plaintiff's counsel.)
Ex.P7 The photocopy of the Certificate of Commercial Tax
Registration and Central Sales Tax of Aachi Spices &
Foods dated 28.12.2006 and 03.01.2007. (Original is
produced, compared and returned to the plaintiff's
counsel.)
Ex.P8 The photocopy of the Trade Mark License user
Agreement between Mr. A.D.Padmasingh lsaac trading
as Aachi Spices and Foods and Aachi Masala Foods Pvt
Ltd dated 01.04.2007. (Original is produced, compared
and returned to the plaintiff's counsel.)
Ex.P9 The photocopy of the Certificate of incorporation of
Aachi Spices and Foods P Ltd. Dated 17.03.2010.
(Original is produced, compared and returned to the
plaintiff's counsel.)
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C.S.(Comm.Div.) No.69 of 2024
Exhibits Documents
Ex.P10 The photocopy of the Memorandum of Association of
Aachi Spices and Foods P Ltd. dated 06.03.2010.
Ex.P11 The 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.
(Original is produced, compared and returned to the
plaintiff's counsel.)
Ex.P12 The photocopy of the Trade Mark License user
Agreement between Mr. A.D.Padmasingh Isaac and
Aachi Masala Foods P Ltd dated 21.04.2010. (Original
is produced, compared and returned to the plaintiff's
counsel.)
Ex.P13 The photocopy of the Trade mark License user
Agreement between Mr. A. D. Padmasingh Isaac and
Aachi Masala Foods P Ltd, dated 04.03.2020. (Original
is produced, compared and returned to the plaintiffs
counsel.)
Ex.P14 The photocopy of the Trademark License user
Agreement between Mr. A. D. Padmasingh Isaac and
Aachi Spices and Foods Pvt Ltd, dated 04.03.2020.
(Original is produced, compared and returned to the
plaintiff's counsel)
Ex.P15 The photocopy of the Partnership Deed dated
30.09.2021 of the 3rd Plaintiff.
Ex.Pl6 The photocopy of the Trademark License user agreement
between lst Plaintiff to 3rd Plaintiff dated 01.11.2021.
(Original is produced, compared and returned to the
plaintiff's counsel)
Ex.P17 The photocopy of the Invoice receipts for Aachi Namma
Kitchen.
Ex.P18 The Certified copy of the Plaintiffs Advertisement in
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C.S.(Comm.Div.) No.69 of 2024
Exhibits Documents
RITZ Magazine.
Ex.P19 The photocopy of the Registration Certificates of the
mark AACHI in various countries around the world.
Ex.P20 The 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. (Original is produced,
compared and returned to the plaintiffs counsel.)
Ex.P21 The photocopy copy of the sample sales invoices for the
year 2000 to 2022.
Ex.P22 The Certified copy of the Chartered Accountant
certificates.
Ex.P23 The photocopy copy of the sample advertisement
Invoices and expenses for the year 1999 to 2023.
Ex.P24 The photocopy copy of the Legal use certificate of Trade
Mark No.838786 in Class 30, dated 29.01.1999.
(Original is produced, compared and returned to the
plaintiffs counsel.)
Ex.P25 The photocopy copy of the Legal use certificate of the
Trademark No.1116254 in Class 30, dated 03.07.2002.
(Original is produced, compared and returned to the
plaintiff's counsel.)
Ex.P26 The photocopy copy of the Legal use certificate of the
Trade mark No.1715718 in Class 43, dated 30.07.2008.
(Original is produced, compared and returned to the
plaintiff's counsel.)
Ex.P27 The photocopy copy of the Legal use certificate of the
Trademark No.2965624 in Class 43, dated 18.05.2015.
(Original is produced, compared and returned to the
plaintiffs counsel.)
Ex.P28 The photocopy copy of the Legal use certificate of the
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C.S.(Comm.Div.) No.69 of 2024
Exhibits Documents
Trademark No.1479159 in Class 30, dated 17.08.2006.
(Original is produced, compared and returned to the
plaintiff's counsel.)
Ex.P29 The photocopy copy of the Legal use certificate of the
Trademark No.5275581 in Class 43, dated 06.01.2022.
(Original is produced, compared and returned to the
plaintiff's counsel.)
Ex.P30 The photocopy copy of the Legal use certificate of the
Trademark No.5274680 in Class 43, dated 06.01.2022.
(Original is produced, compared and returned to the
plaintiffs counsel.)
Ex.P31 The photocopy copy of the Legal use certificate of the
Trademark No.5446987 in Class 43, dated 13.05.2022.
(Original is produced, compared and returned to the
plaintiff's counsel.)
Ex.P32 The printout of the AACHI NAMMA KITCHEN'S Name
Board.
Ex.P33 The original AACHI NAMMA KITCHEN'S Menu card.
Ex.P34 The printout of the order passed by Trademark Trial and
Appellate Board, United States Patent and Trademark
office dated 13.09.2016.
Ex.P35 The printout of order passed by the Australian
Trademark Office in an Opposition filed by the 1st
Plaintiff dated 04.06.2021.
Ex.P36 The printout of the 1st Defendant's Restaurant name as
reflected in the online platform of the 2nd Defendant.
Ex.P37 The printout of the Photograph of the 1st Defendant's
name Board.
Ex.P38 The office copy of the Cease & Desist Notice sent to the
1st Defendant with Postal Receipt dated 04.05.2023 and
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C.S.(Comm.Div.) No.69 of 2024
Exhibits Documents
Acknowledgement card and original returned cover.
Ex.P39 The office copy of the Cease & Desist Notice sent to the
2nd Defendant with Postal Receipt dated 0405.2023 and
Acknowledgement card and original return cover.
20.09.2024
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C.S.(Comm.Div.) No.69 of 2024
SENTHILKUMAR RAMAMOORTHY,J
kj
C.S.(Comm.Div.) No.69 of 2024
and O.A.Nos.234, 235 of 2024 &
A.Nos.1719 & 1721 of 2024
20.09.2024
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