Mr.A.D.Padmasingh Isaac vs /

C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 07.07.2021

CORAM:

THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016

1.Mr.A.D.Padmasingh Isaac, Trading as 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 [P] Ltd., Old No.4, New No.181/1, 6th Avenue, Thangam Colony, Anna Nagar, Chennai-600 040. Represented by its Director Mr.Ashwin Pandian .. Plaintiffs

/versus/

Nala's Foods, #1, Avvai street, Meenakshi Amman Nagar, Alwar Thiru Nagar, Chennai-600 087. .. Defendant

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This Civil Suit is filed under Order IV Rule 1 Original Side Rules read with Order VII Rule 1 of CPC read with Sections 27[2], 29, 134 and 135 of the Trademarks Act 1999, prayed for (a) granting a permanent injunction, restraining the Defendant, by itself, its servants, agents,, distributors, or any one claiming through him from manufacturing, selling advertising and offering for sale using same or similar get up, and colour scheme used by the Defendant's shown in Document No.2 or any other similar trademark or any media and use the same in invoices, letter heads and visiting cards or by using any other trademark which is in any way visually or deceptively or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or 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 or phonetically similar to the plaintiffs' registered Trademark No.1318495, or in any manner infringe the plaintiff's registered trademark;

(b) granting a permanent injunction, restraining the Defendant, by itself, its servants, agents, distributors, or any one claiming through him from manufacturing, selling, advertising and offering for sale using same or similar get up, and colour scheme used by the Defendant shown in Document No.2 or any other similar trademark or any media and use

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the same in invoices, letter heads and visiting cards or by using any other trademark which is in any way visually or deceptively or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or 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 or phonetically similar to the plaintiffs' registered Trademark “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or in any manner pass off the Plaintiffs' goods;

(c) directing the Defendant to surrender to the Plaintiffs' all the packing materials, cartons, advertisement materials and hoardings, letter- heads, visiting cards, office stationery and all other materials containing / bearing the name “ARU SUVAI” and packets in the colour 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 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

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(e) directing the Defendant to pay to the Plaintiffs' the costs to the suit.

For plaintiff : M/s.C.Daniel & Gladys Daniel

JUDGMENT

The suit is filed for the following relief:

(a) granting a permanent injunction, restraining the Defendant,

by itself, its servants, agents,, distributors, or any one claiming through

him from manufacturing, selling advertising and offering for sale using

same or similar get up, and colour scheme used by the Defendant's shown

in Document No.2 or any other similar trademark or any media and use

the same in invoices, letter heads and visiting cards or by using any other

trademark which is in any way visually or deceptively or phonetically

similar to the plaintiffs' registered Trademark “AACHI MASALA

KULAMBU CHILLY POWDER” as shown in Document No.1 or 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

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other trademark which is in any way visually or phonetically similar to

the plaintiffs' registered Trademark No.1318495, or in any manner

infringe the plaintiff's registered trademark;

(b) granting a permanent injunction, restraining the Defendant,

by itself, its servants, agents, distributors, or any one claiming through

him from manufacturing, selling, advertising and offering for sale using

same or similar get up, and colour scheme used by the Defendant shown

in Document No.2 or any other similar trademark or any media and use

the same in invoices, letter heads and visiting cards or by using any other

trademark which is in any way visually or deceptively or phonetically

similar to the plaintiffs' registered Trademark “AACHI MASALA

KULAMBU CHILLY POWDER” as shown in Document No.1 or 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 or phonetically similar to

the plaintiffs' registered Trademark “AACHI MASALA KULAMBU

CHILLY POWDER” as shown in Document No.1 or in any manner pass

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off the Plaintiffs' goods;

(c) directing the Defendant to surrender to the Plaintiffs' all the

packing materials, cartons, advertisement materials and hoardings, letter-

heads, visiting cards, office stationery and all other materials containing /

bearing the name “ARU SUVAI” and packets in the colour 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 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.

2. According to the plaintiff, he is the owner of the trademark

AACHI and has registered the name for various food products under

Class 5, 29, 30, 32 & 42. Over the years, the plaintiff has grown into one

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of the leading manufactures and marketers of spices in India. To exploit

the goodwill and the market of the plaintiff, the defendant had imitated

the mark of the plaintiff with same colour scheme and had patently

infringed the plaintiff's registered trademark “AACHI MASALA

KULAMBU CHILLY POWDER” for its product “ARU SUVAI

KULAMBU CHILLY POWDER”. The defendant's label consisting of

word “ARU SUVAI” written prominently embossed in back ground label

is alleged to be the imitation of the plaintiff's colour combination in its

wrapper. In the plaint, the similarity between two marks has been listed

out. Being prima facie satisfied about the allegations of infringement of

trademark, this Court on 10.08.2016 granted interim injunction against

the defendant from using the registered trademark of the plaintiff or

imitating the same. The summons sent to the defendant was returned as

refused. Therefore, the defendant was called absent and set ex-parte on

18.02.2021.

3. The plaintiff was asked to let in evidence. Accordingly,

Mr.B Gnanasambandam was examined as PW.1. On behalf of the

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plaintiff. 19 exhibits were marked to substantiate the claim of the

plaintiff. Ex.P.10 is the copy of the trademark license user agreement

between the plaintiff and Aachi Masala food products limited. Ex.P.13 is

the copy of the trademark license user agreement between the plaintiff

and Aachi spices and food private limited. Ex.p.16 is the copy of legal

use certificate of the trademark No.1318495 Aachi for class 30 goods.

4. On perusal of Ex.P.16, this Court finds that the plaintiff

Mr.A.D.Padmasingh Isaac trading as Aachi Spices and Foods is the

registered proprietor of the device and word mark Aachi Masala.

Pursuant to the legal use certificate, the plaintiff is marketing his product

using the registered Aachi masala label for the goods “KULAMBU

CHILLY POWDER” as depicted on the pouch of the plaintiff which is

marked as Ex.P.18.

5. The allegation against the defendant is that the label, the

design, the device “Aachi Masala” (label) registered as a trademark and

word mark with the competent authority is imitated by the defendant for

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the goods “KULAMBU CHILLY POWDER”. The plaintiff to the above

mentioned documents has substantially proved that its registered

trademark and word mark is marketed as Aachi Masala Chilly

Powder(label) is imitated by the defendant for marketing its product “SRI

ARU SUVAI CHILLY KULAMBU POWDER”

6. The adoption of the plaintiff's mark and label by the

defendant is with the intention of poaching reputation and goodwill of

the plaintiff. Therefore, this Court finds that the plaintiff is entitled for

the injunction relief prayed for restraining the defendant from using the

plaintiff's trademark “AACHI MASALA KULAMBU CHILLY

POWDER” and for any other device with similar get up and colour

scheme on the pouch or packets.

7. Since the defendant whereabouts as of now is not known,

the relief sought by the plaintiff in the suit in prayers A and B are

allowed. The consequential relief sought by the plaintiff in prayers C and

D are rejected.

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8. In the result, the suit is partly allowed with costs.

Consequently, connected applications are also closed.

07.07.2021

Index : yes/no rpl

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Dr.G.JAYACHANDRAN,J.

rpl

C.S.(Com.Div.) No.353 of 2016 and O.A.Nos.503 & 504 of 2016

07.07.2021

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