Madras High Court
Mr.A.D.Padmasingh Isaac vs / on 10 August, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
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 in name 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 visiting cards, websites or internet advertisements or part of their
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C.S.(Comm.Div.) No.79 of 2022
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 : Ms.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 evident that the registration is for the word mark AACHI 5/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.79 of 2022 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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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).7/11
https://www.mhc.tn.gov.in/judis 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., 8/11 https://www.mhc.tn.gov.in/judis 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).
9/11https://www.mhc.tn.gov.in/judis 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).
10/11https://www.mhc.tn.gov.in/judis 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 11/11 https://www.mhc.tn.gov.in/judis