Madras High Court
Mr.A.D.Padmasingh Isaac vs Rajeswari Confectionery on 16 March, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
C.S.(Comm.Div.) No.6 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.03.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
C.S.(Comm.Div.) No.6 of 2021
and O.A.Nos.367, 368 of 2021
1.Mr.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.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.
Rajeswari Confectionery
No.21, Ismailpuram,
10th Street,
Madurai - 625 009. ... Defendant
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C.S.(Comm.Div.) No.6 of 2021
PRAYER: Plaint filed under and 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
itself, its servants, agents, distributors, or anyone claiming through them
from manufacturing, selling, advertising and offering fr sale using the
trademark AACHI CANDY or any other similar Trademark name or similar
sounding expression in any media or the red oval device in relation to any
products and use the same on any pouches, packets of candies or
confectioneries or any other goods and use the same in name board,
invoices, letter heads and visiting cards or by using any other Trademark
which is in any way visually, and deceptively similar to the plaintiffs'
registered Trademark "AACHI & Aachi" or by using any other Trademark
which is in any way visually, and deceptively similar to the Plaintiffs'
registered Trademark No.838786, 1731915, 3370962 and 3371000 or in any
manner infringe the Plaintiffs' registered Trademark.
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C.S.(Comm.Div.) No.6 of 2021
(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 the
trademark AACHI CANDY or any other similar Trademark name or similar
sounding expression in any media or the red oval device as shown in
Document No.2 by using any other Trademark which is in anyway,
phonetically, visually or deceptively similar to the Plaintiffs' Trademark
'AACHI & Aachi' as shown in Document No.1 relation to above
mentioned products and use the same in any pouches, packets of candies or
confectioneries 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 'AACHI & Aachi' as shown in Document No.1 in
any manner pass off the plaintiffs' goods.
(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 /
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C.S.(Comm.Div.) No.6 of 2021
bearing the name AACHI / AACH CANDY or other deceptively similar
trademark used in the pouches and packets in respect of their products.
(d) directing the Defendants to render an account of profits made by
them by the use of the impugned Trademark AACHI / AACHI CANDY
(word) and (device) 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.
(e) directing the defendant to pay to the plaintiffs the costs to the suit.
For Plaintiffs : Ms.T.Hemalatha for M/s.C.Daniel
**********
JUDGMENT
The suit is filed for permanent injunctions to restrain the defendant from infringing the plaintiffs' registered Trademarks and from passing off the defendant's products as that of the plaintiffs'. The plaintiffs have also 4/12 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 prayed for surrender of all infringing material for destruction and for rendition of an account of profits made by the defendant by using the impugned mark AACHI CANDY.
2. In spite of service of summons on the defendant, the defendant did not enter appearance. Therefore, the defendant was set ex parte on 25.10.2021, and the plaintiffs were directed to record evidence. Pursuant thereto, the plaintiffs filed an affidavit of evidence through B.Gnanasambandam, the General Manager - L & S, of the second plaintiff.
In course of the examination-in-chief of P.W.1, 26 documents were exhibited as Exs.P1 to P26. The suit is placed before this Court after oral evidence was recorded.
3. The plaintiffs state that they are one of the leading manufacturers and marketers of spices in India. According to the plaintiffs, the trademark AACHI was first adopted by the first plaintiff in the year 1995. The second plaintiff was incorporated on 13.06.2006. The plaintiffs assert that the first plaintiff is the registered proprietor of the Trademark AACHI and that the 5/12 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 Trademark is used through his licensees, AACHI's Spices and Foods Private Limited and the second plaintiff. The plaintiffs have set out the details of registrations obtained by the plaintiffs in respect of the Trademark AACHI as word, label or stylized marks in paragraph 10 of the plaint.
4. The suit was filed after discovering that the defendant is selling candies in the name of AACHI CANDY. The plaintiffs assert that the same constitutes infringement of the plaintiffs' registered Trademark. The plaintiff's label and that of the defendant are cited to corroborate the said contention. The said labels were exhibited in evidence as Exs.P25 and P26.
The plaintiffs have also exhibited the legal user certificates as Exs.P21, P22 and P24.
5. On examining the plaint, the proof affidavit and the exhibits marked on behalf of the plaintiffs, the plaintiffs have established that they are the registered proprietors of the Trademark AACHI in several classes, including Class 30. The mark of the defendant is deceptively similar to that of the plaintiffs. Consequently, the plaintiffs are entitled to succeed as 6/12 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 regards prayers (a) to (c)and (e). As regards prayer (d), in the absence of accounts from the defendant, the profits and the court fee thereon cannot be ascertained and paid. Therefore, prayer (d) is rejected.
6. Accordingly, C.S.(Comm.Div.) No.6 of 2021 is decreed in terms of prayers (a), (b), (c) of paragraph 38 of the plaint. The defendant is directed to pay the plaintiffs a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as costs, which includes court fees, lawyer's fees and other costs.
Consequently, the connected O.A.Nos.367, 368 of 2021 are closed.
16.03.2022 rna Index : Yes / No Internet : Yes / No Plaintiff's side Witness:
P.W.1 - B.Gnanasambandam Plaintiff's side Documents:7/12
https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 Exhibit No. Exhibits Ex.P1 Original Authorization Letters dated 22.11.2021. Ex.P2 Original Board Resolution dated 13.08.2020. Ex.P3 Print outs of list of products manufactured and marketed by the plaintiffs bearing the trademark AACHI and Affidavit filed 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 (verified with original and returned).
Ex.P5 Photocopy of the Certificate of Commercial Tax Registration of Aachi Masala & Foods (P) Ltd dated 10.07.2006 (verified with original and returned).
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 (verified with original and returned).
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 (verified with original and returned).
Ex.P8 Photocopy of the Trademark 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 (verified with original and returned). Ex.P9 Photocopy of the Certificate of incorporation of Aachi Spices and Foods P Ltd. dated 17.03.2010 (verified with original and returned).
Ex.P10 Photocopy of Memorandum of Association of Aachi Spices and Foods P Ltd. dated 06.03.2010 (verified with original and returned).
Ex.P11 Photocopy of the Trademark license user agreement between Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt.
8/12https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 Exhibit No. Exhibits Ltd dated 21.04.2010 (verified with original and returned). Ex.P12 Photocopy of the Trademark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods P Ltd dated 21.04.2010 (verified with original and returned). Ex.P13 Photocopy of the Trademark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt Ltd dated 04.03.2020 (verified with original and returned).
Ex.P14 Trademark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods P Ltd dated 04.03.2020 (verified with original and returned). Ex.P15 Certified copy of the plaintiffs Advertisement in RITZ Magazine.
Ex.P16 Photocopy of the Registration Certificates of the mark AACHI in various countries around the world (verified with original and returned).
Ex.P17 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 (verified with original and returned). Ex.P18 Series of the photocopies of the Sample sales invoices for the years 2000 - 2020 (verified with original and returned).
Ex.P19 Certified copy of the Sample Invoices of advertisements for the years 1999 - 2020.
Ex.P20 Certified copy of the Chartered Accountant Certificates dated 02.03.2017 & 20.07.2020.
Ex.P21 Photocopy of the Legal user certificate of Trademark Nos.838786 in Class 30, dated 29.01.1999 (verified with original and returned).
9/12 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 Exhibit No. Exhibits Ex.P22 Photocopy of the Legal user certificate in Trademark
No.1731915 in Class 30, dated 15.09.2008 (verified with original and returned).
Ex.P23 Printout of the Registration Certificate of the Trademark under No.3370762 in Class 30 dated 26.09.2016 (mentioned in 65B certificate).
Ex.P24 Photocopy of the Legal user certificate of the Trademark No.3371000 in Class 30, dated 26.09.2016 (verified with original and returned).
Ex.P25 Printout of the plaintiffs' Label (mentioned in 65B certificate).
Ex.P26 Printout of the Defendant's Label (mentioned in 65B certificate.
Defendant side Witness and Documents:
-NIL-
SKRJ 10/12 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 SENTHILKUMAR RAMAMOORTHY,J rna C.S.(Comm.Div.) No.6 of 2021 and O.A.Nos.367, 368 of 2021 11/12 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.6 of 2021 16.03.2022 12/12 https://www.mhc.tn.gov.in/judis