Madras High Court
Mr.A.D.Padmasingh Isaac vs / on 3 August, 2021
Author: G.Jayachandran
Bench: G. Jayachandran
C.S.No.558 of 2018
and
A.No.5136 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :19.07.2021 Pronounced on : 03.08.2021
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
C.S.No.558 of 2018
and
A.No.5136 of 2019
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
/vs/
Sudali Aachi Provisions
No.28, First Floor,
Velachery, Bazzar Road,
1/50
https://www.mhc.tn.gov.in/judis/
C.S.No.558 of 2018
and
A.No.5136 of 2019
Balayagarden,
Chennai 600 091.
Represented by its Partners
Mrs.Muthumari Ammal and
mr.G.Iyyappan
(Amended as per Order dated
16.11.2018 in A.No.8789 of 2018) .. Defendants
Prayer: Civil Suit has been filed under Order IV, Rule 1 of the Original Side
Rules and Order VII, Rule 1 of the C.P.C. Read with Section 27(2), 29, 134
and 135 of the Trade marks Act, 1999 praying to pass a judgment and
decree:
(a)granting a permenent injunction, restraining the defendant by itself, its
servans, agents, distributors, or anyone claiming through him from
manufacturing, selling, advertising, offering for sale and running the
website using same or similar or identical Trade Mark SUDALI AACHI
PROVISION/sudaliaachi.com or any other similar Trademark or in 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 phonetically
similar to the 1st plaintiff's trademark AACHI/AACHI SUPER STORE and
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.1690157 in
Class 42 or in any manner infringe the 1st plaintiff's registered trademark.
(b)granting a permanent injunction, restraining the defendant, by itself, its
servants, agents, distributors, or anyone claiming through him from
manufacturing, selling, advertising, offering for sale and running the
website using same or similar or identical Trade Mark SUDALI AACHI
PROVISION/sudaliaachi.com or any other similar Trademark or in any
media and use the same in invoices, letter heads and visiting cards or by
2/50
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C.S.No.558 of 2018
and
A.No.5136 of 2019
using any other trade mark which is in any way visually or deceptively or
phonetically similar to the plaintiffs' trademark AACHI/AACHI SUPER
STORE 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' Trademark
AACHI/AACHI SUPER STORE or 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/bearing
the name Sudali Aachi Provision or other visually or phonetically similar
trade mark used in the pouches and packets.
(d)directing the defendant to render an account of profits made by them by
the use of the impugned trademark Sudali Aachi Provision 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 of the suit.
For Plaintiffs :Mr.P.S.Raman, Senior Counsel for
Mrs. Gladys Daniel
For Defendant : Mr.R.Abdul Mubeen
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C.S.No.558 of 2018
and
A.No.5136 of 2019
JUDGMENT
(The case has been heard through Video Conferencing) The suit for permanent injunction restraining the defendant, men, and agents from using the same or similar or identical trade mark “Sudali Aachi Provision/sudaliaachi.com” or any other trademark, which is similar in any way visually or phonetically similar to the 1st plaintiff's trademark “AACHI/AACHI SUPER STORE” and for other consequential incidental reliefs.
The case of the plaintiffs as stated in the plaint runs as below:-
2. The plaintiffs are the leading manufacturers and marketers of spices in India. Presently, they are dealing in over 400 different products with the trademark 'AACHI'. The said trademark 'AACHI' was first conceived and adopted by the 1st plaintiff and was trading through his proprietary concern, Abhishek Enterprises from the year 1995. The trade mark 'AACHI' was first applied for and registered in the name of the first 4/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 plaintiff in the year 1999. Since then 202 applications have been filed for the trademark 'AACHI' in respect of various goods and services that have been manufactured, marketed and catered by the 'AACHI' group of companies. At present, there are 128 Indian registrations of the trademark 'AACHI' in various word, label and stylized marks.
3.The first plaintiff in the year 2002 entered into a partnership with Mrs.Rani Panidan and set up a partnership firm under the name Naveen Products. Later, Aachi Masala Foods Private Limited was incorporated on 13.06.2006 and thereafter, the assets and liabilities of Abhishek Enterprises and Naveen Products were transferred to Aachi Masala Foods Private Limited with effect from 30.11.2006. The Trade Mark was assigned by Abhishek Enterprises and Naveen Products in favour of the first plaintiff on 30.03.2007. Thereafter, the partnership firm Naveen Products was dissolved. On 01.04.2007, the first plaintiff executed a License User Agreement in favour of 2nd plaintiff - Aachi Masala Foods Private Limited.5/50
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4.By virtue of efforts taken by the plaintiffs, the mark AACHI has become very popular by the goods produced by them. No one can use the mark 'AACHI' on their goods or services, without express concern of the plaintiff, which will amount to infringement of the plaintiff registered trademark. Presently, the plaintiff enjoyed 128 Indian Registraion over the mark 'AACHI' in various word, label and stylized mark and 27 international registeration. While so, the defendant is carrying on its trading activities of selling grocery under the name and style 'Sudali Aachi Provision', infringing the plaintiff's registered trademark 'AACHI'. The defendant is also operating their business through their website sudaliaachi.com. The two marks are visually and phonetically similar. It is a conscious copy.
5.Depicting their Trademark 'Sudali' written in a very small font, between the words AACHI which cannot be seen normally, clearly discloses the defendant's mala fide and evil intention of copying the plaintiff's trademark 'AACHI'. The prominent feature of the defendant's trade mark is 6/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 a blatant imitation of the plaintiffs trademark Aachi/Aachi Super Stores. The defendant use of Sudali Aachi Provision which is deceptively similar mark of the plaintiffs is bound to create confusion and deception in the market. The plaintiff is the prior user under the registered trade mark “AACHI”. Whereas the defendant is a recent entrant. Hence, the adoption and use of the impugned mark amounts to fraud under the Trade Marks Act 1999. The defendant's adoption of said mark is not an act of innocence but an act of dishonesty, motivated to poach upon the reputation and goodwill enjoyed by the plaintiffs.
Case of the defendant as stated in their written statement:
6.On receipt of the suit summon, the sole defendant has filed written statement denying the averments found in the plaint. The defendant admits that they are running a provision store under the name and style of “Sudali Aachi Provision”. It is a partnership concern consisting of Mrs.Muthu Mari ammal and Mr.G.Iyyappan. The shop is named after the grandmother of one 7/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 of the partners and grand mother-in-law of the other partners. The partners are husband and wife. To the name of Sudali, the term 'Aachi' is suffixed to show reverence to the elderly woman, who died at her age of 104. There is no infringement of the plaintiffs' trademark as alleged by the plaintiffs. Neither there is any intention to poach upon the reputation and goodwill enjoyed by the plaintiffs. There is no malafide or ill-intention to copy the trademark of the plaintiffs. The defendant is selling grocery and other masala products including the products of the plaintiffs. There is no similarity between the two marks. The use of common word “AACHI” will not create any doubt in the minds of the public. It is only an assumption on surmises.
7.The word “AACHI” is a term used in common parlance and hence, it is already in public domain even much prior to the application of the plaintiffs for registration of the trademark. The “AACHI” is a common word, which is customarily used in Tamil language and therefore, claiming 8/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 exclusive right over the said common word “AACHI” is in gross violation of Section 9 (1) (b) of the Trade Marks Act, 1999. The word “AACHI” has a dictionary meaning, separate and distinct character even prior to the registration of the trade mark by plaintiffs. The defendant use the name “Sudali” suffixed with 'Aachi' is not an intentional imitation of the plaintiffs' trade mark. In Tamilnadu grandmothers are called as 'Aachi' in reverence and it is a term in “Publici Juris”.
8.Further, the plaintiffs are in the trade of manufacturing and marketing spices. The defendant is running a provision stores selling grocery. The business of the plaintiffs and the defendant are different and they are operating in two different field. There is no similarities in the business of the parties and there is no chance of causing any confusion in the minds of the pubic. Further, the word 'AACHI' being already in public domain. The said term is protected under Section 30 of the Trade Marks Act, 1999. The defendant is an honest and bona fide user of the mark as it is 9/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 a common term, which is already in public domain. Though the plaintiffs have obtained registration of the trade mark for “AACHI SUPER STORES”, they are not in fact carrying any retail or wholesale activity in the grocery in this name. Hence, the claim of the plaintiffs for passing off by the defendant is not maintainable on law and on facts. The plaintiffs are a non-user of the trade mark in the category of the business carried on by the defendant. They use the mark bonafidely, which is already in public domain. The plaintiffs cannot claim exclusive right over the word “AACHI”, which is not an invented word, but a term which remains and used in Tamil language from time immemorial.
9.In response to the above written statement of the defendant, the plaintiffs have filed their reply statement, wherein they have reiterated their claim over the name “AACHI”. Referring the registration trademark No.1690157 under Class 42 for the word mark “AACHI SUPER STORES” registered on 22.05.2008, it is pleaded that the word “Sudali” as a suffix to 10/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 the word 'Aachi' will not dislodge the confusion in the market. Further, the use of the mark “AACHI' in part sufficient to cause confusion among the public and per se amounts to infringement. The goods and services of the plaintiffs and the defendant are cognate in nature. The principle of 'broad classification' is not applicable to this case, in view of the fact that the products are traded through same channel and in fact, the defendant admits that they sell the product of the plaintiffs also in their provision stores, the probability of deceiving the customers that the goods sold by the defendant are from the plaintiffs' company. The customers will be mislead to believe that “Sudali Aachi Provision is the outlet of the plaintiffs. The first plaintiff's exclusive right in the trade mark “AACHI' has been recognised by statute and the plaintiffs have invested several crores in popularising the trademark “AACHI' and it is this investment that the defendant is seeking to ride upon by adopting the same trade mark for allied goods. The mark “AACHI' is not a publici juris. Addition of the word, “Sudali” will not take away from the fact that the mark as a whole is an infringement of the 11/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 plaintiffs' rights. The plaintiffs though not have launched “AACHI SUPER STORES”, it likely to launch shortly with respect to various grocery products.
10.This Court, after considering the pleadings, framed the following Issues for consideration:-
(i)Whether the word 'AACHI' is a publici juris available in public domain and entitled to protection under Section 30 of the Trade Marks Act, 1999?
(ii)Whether the plaintiffs' trademark “AACHI SUPER STORES” bearing No.1690157 under Class 42 is infringed by the defendant by using the name “SUDALI AACHI PROVISION”?
(iii) Whether the mark of the defendant 'SUDALI AACHI PROVISION' on the whole or part is identical or deceptively similar to the registered trademark of the plaintiff 'AACHI SUPER STORES'?
(iv) Whether the plaintiffs are entitled for the relief of 12/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 permanent injunction against the defendant from using the mark “SUDALI AACHI PROVISION” and the website Sudaliaachi.com?
(v) Whether the plaintiffs have suffered any monetary loss of goodwill on the defendant using the word 'SUDALI AACHI PROVISION'?
(vi)Any other relief ?
11.On behalf of the plaintiff, Mr.Ganasambandam, Deputy General Manager of the plaintiff's Company was examined as PW-1. 20 documents were marked through him as Exs.P1 to P20. On behalf of the defendants, one of its partner Mr.G.Iyappan was examined as DW1. 4 documents were marked as Exs.D1 to D4.
12.The plaintiffs states that the trademark “AACHI” was first conceived and adopted by the first plaintiff through his proprietary concern, Abhishek Enterprises, which commenced its business in the year 1995. The 13/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 word “AACHI” has a separate and distinct character even prior to the registration of the trademark. The trade mark has become very popular and it is a very valuable intellectual property of the first plaintiff. No one used the mark AACHI for spices, masala and other goods or services for which the first plaintiff is the prior user. The mark is unique and distinctive of the plaintiff goods.
13. In support of his submissions, the learned Senior Counsel Mr.P.S. Raman appearing for the plaintiffs rely upon the following judgments:
(1)Amritdhara Pharnmacy v. Satyadeo Gupta
reported in AIR 1963 SC 449.
(2)K.R.Chinna Krishna Chettiar v. Shri Ambal and Co., and others reported in AIR 1970 SC 146.
(3)A.D.Padmasingh Isaac, Trading as Aachi Spices and Foods and another v. Aachi Cargo Channels Private Limited in C.S.No.341 of 2010 dated 29.11.2019.
(4)A.D.Padmasingh Isaac & Another v. Aachi 14/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 Aappakadai Chettinad A/c Restaurant in C.S.No.151 of 2013 dated 11.03.2021.
(5)A.D.Padmasingh Isaac and another v. Aachi Aappakadai Chettinad A/c Restaurant in O.S.A.No.109 and 110 of 2014 dated 18.03.2021 (6)M.Scott Alprin and Nicholas T.Santucci of Alprin Law Offices, P.C., for Aachi Spices and Foods v. Kalidoss Raju passed by Trademark Trial and Appellate Board, United States Patent and Trademark office dated 13.09.2016 (7)A.D.Padmasingh Isaac, trading as Aachi Spices and Foods v. Ragopika Pty. Ltd., passed by Australian Trademark Office dated 04.06.2021.
(8)Needle Industries (India) Limited v. Sanjay Jaiswal and others reported in 2002 (24) PTC 646 (Mad).
(9)T.V.Venugopal v. Ushodaya Enterprises Limited and others reported in 2011(3) Scale 182.
(10)Caterpillar Inc., U.S.A. v. Jorange and others reported in AIR 1998 Mad. 171.
15/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 (11)SNJ Distilleries Limited v. Imperial Spirits Private Limited reported in 2010-4-LW 304
14.Per contra, the learned counsel appearing for the defendant Mr. R.Abdul Mubeen, emphasised that the term “AACHI” is a common generic word referred to grandmothers. The plaintiff registration of such common word “Aachi”, which is customarily used in Tamil language is in gross violation of Section 9(1)(b) of the Trade Marks Act, 1999. The word “AACHI” is being already in public domain. The said term is entitled to get protection under Section 30 of the Trade Marks Act, 1999.
15.To butress his submission, the learned counsel for the defendant relied upon the following judgments:-
(1)Parle Products (P) Ltd., v. J.P. And Co., Mysore reported in (1972) 1 SCC 618;
(2)Vishnudas Trading v. Vazir Sultan Tobacco Co. Ltd., reported in (1997) 4 SCC 201;
(3)Orchid Chemicals and Pharmaceuticals v.16/50
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(4)A.D.Padmasingh Isaac v. Aachi Appakadai Chettinad reported in (2014) SCC online (Mad) 535;
(5)Lal babu Priyadarshini v. Amirtpal Singh reported in (2015) 16 SCC 795;
(6)Parakhvanijya Private Limited v. Baroma Agro Product reported in (2018) 16 SCC 632;
(7)Nandhini Deluxe v. Karnataka Coop. Milk producers Federation Limited reported in AIR (2018) SC 3516; and (8)M/s Bombay Plasters & others v. M/s Jagadhamba Plaster & others reported in (2018) 4 Civil LJ 568.
16.Finding on the issues:
The plaintiffs herein, who commenced their business in the year 1995, had thought fit to adopt the name 'Aachi' for their products mainly spices for the reason that the Aachi's of Chettinadu are know for their spicy food preparation. The plaintiffs claim that their use of the term Aachi for their products had gained distinct character, due to the vast presence of its goods over the world. The first plaintiff for his innovative idea of adopting the 17/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 name “AACHI” to the spices manufactured and marketed has been credited with grant of trademark for its products. The trademark has gained secondary meaning and it is evident from the annual turnover of the plaintiffs' company which is about 1400 crores of rupees. Several crores is spent on the advertisement of the brand.
17. Much argued regarding character of the word 'AACHI'. Therefore, before adverting to the facts and law, this Court venture to trace the etymology and character of this tamil word to ascertain, whether this word falls under the category of 'publici juris' or gained a secondary meaning in favour of the plaintiffs.
18.Aachi (Mr;rp) is a Tamil word, which is popularly used among the Tamilians, residing in Sivagagai and Thanjavur Districts of Tamil Nadu, the area popularly identified as “Chettinadu”. This word denotes 'elderly lady' This word is more prevalent among the Nattukottai Chettiar community and 18/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 freely adopted by the other communities through out Tamil Nadu. Elders in this area are called as Mr;rp (Aachi-grand mother), mk;khr;rp (Ammaachi-great grand mother), mg;ghr;rp (Appaachi-grand father). In spoken tamil, the word Aachi(Mr;rp) is used as a second syllable to denote 'done' – Mudichaachi - Kbr;rhr;rp Time up – Neeram aachi – Neukhr;rp. Vandathaachi or Vandu serthaachi/te;jhr;rp or te;JNrh;e;jhr;rp. A popular caste in Northern Tamil Nadu is by name 'Padaiyaachi'. Like any other community in India, most of them suffix to their name their community name. Certain popular pronouns in tamil will end with the word “AACHI”. Few examples, kPdhl;rp (Meenaachi), fhkhl;rp (Kamaachi), tprhyhl;rp (Visalaachi) and Mr;rpak;kd; (Aachi Amman). These pronouns in hindi or other northern languages pronounced differently and its equivalent English alphabetics will be different.
19.Also, we can find in Karaikudi and region around it, women folks carrying names with the suffix “Aachi”. Example, rpfg;ghr;rp (Chigapiaachi), 19/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 rptfhkhr;rp (Sivagamiaachi) and kfpikahl;rp (Magimaiaachi). In western Tamil Nadu, a popular town is named as bghs;shr;rp (Pollaachi). Thus, in tamil language, one can find the word “AACHI” (Mr;rp) in abundance either as a whole or part of the pronouns or as suffix to verb or adverbs. In Tamil language, there is no equivalent to the Sanskrit/Hindi consonent 'shi' ( ???? ). The near equivalent consonent to this word in Tamil is chi (rp). Therefore, the pronouns in Tamil, when written in English alphabets, occurrence of using the word 'aachi' becomes inevitable.
20.To be also noted that, the Tamil word Aatchi (Ml;rp), which means 'Rule', colloquially by few pronounced as Aachi (Mr;rp). Therefore, if any one tries to write the tamil word (Ml;rp) in English may end up in writing it as aachi (Mr;rp). Hence, for the above reasons, the word Aachi in Tamil cannot be equated with the English words like, Benz, Caterpillar, Bata or Nepoleon Brandy etc., to claim secondary meaning. Without understanding the depth of the language, it script and grammer just going by the phonetical 20/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 translation with English alpha will lead to disasterous conclusion.
21.In Tamil language, a small change in the consonant or a vowel or stress on any one syllable or consonant will be a different word with different meaning or a same word with different meaning. For example, blue colour in Tamil is called as (ePy epwk;). The linear measurement-length is called as (ePsk;). But, both words are written in English as Neelam.
22.Therefore, there is no persuasive value for the observations made by the Courts of Australia and U.S.A, about the tamil word 'Aachi' in Aachi Appakadai case or the finding of the learned Single Judge in the interim application, which is subject matter of the Intra-Court Appeal, pending.
23.The English alpha for Tamil word is prone to variation due to various factors, which are explained above. Taking advantage of the said vagaries attempt is made to claim exclusive proprietoryship over the word 21/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 “Aachi”, which is a common and descriptive word in tamil, available in the public domain as publici juris.
24.On examining the evidence, this Court finds that the plaintiffs have valid trademark registration for the word “AACHI” for goods under classes 3, 29, 30, 32 and for the word mark “AACHI SUPER STORES” for the services under Class 42 with effect from 22.05.2008.
25.Class 42 under Schedule IV of the Trademark Rules, 2002 reads as below:-
“Class 42: Providing of food and drink, temporary accommodation, medical, hygienic and beauty care, veterinery and agricultural sevics, legal servces, scientific and industrial research, computer programming, servics that cannot be classified in other classes.”
26.It is an admitted case of the plaintiffs that sofar they have not 22/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 started any business in this name. In the cross examination of PW-1, it is admitted that there is no evidence to show that they are running any business under the name and style of “AACHI SUPER STORES”. In any event, having a trademark valid upto 22.05.2018 and Legal use Certificates for the Trademark AACHI (Ex.P13) been issued to the plaintiff, it is to be tested whether this trademark has been infringed by the defendant by using it identical or deceptively similar.
27.The defendant herein running a provision store since 2015 under the name and style of “Sudali Aachi Provision”. Under Section 29(5) of the Trade Marks Act, a person uses a registered trademark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trademark is registered, will be considered as infringement of the registered trademark. The plaintiff has registered the name “AACHI SUPER STORES” under Class 42. Assuming that the provision Store selling 23/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 grocery will fall under any other services mentioned under Section 42, the marks of the plaintiff and the defendant has to be tested, whether it falls within the meaning of infringement as specified under sub-section (1) of Section 29 of the Trade Marks Act. which says that the use of the registered trademark by other person, without permission, must be identical or deceptively similar to the trademark in respect of which the mark is registered.
28.In this case, “AACHI SUPER STORES” is a word mark perse. Whereas the defendant is using a pictorial device of his grand mother along and trade name “Sudali Aachi Provision”. Suffixing the word 'Aachi' to the word “Sudali”, is an infringement of the trademark. From out of 128 trademarks registered by the plaintiffs, which are listed in the plaint, the word “Aachi” is registered under classes 3, 29, 30, 32 and the word “Aachi Super Stores” is registered under Class 42 as service. 24/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019
29.The defendant claims that Sudali Aachi is the name of their grand mother and along with the picture of their grand mother they have displayed the shop trade name as “Sudalai Aachi Provision”. Under Section 30 of the Trade Marks Act, 1999, the name of their grand mother is adopted innocently, without any intention of taking unfair advantage or detrimental to the distinctive character or repute of the plaintiff trademark. So, their action is protected under Section 30 (1) of the Act.
30.For easy reference, Sections 29(1) and 30(1) of the Trade Marks Act, 1999, is extracted below: :-
29.Infringement of registered trademarks: (1)A registered trademark is infringed by a person, who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.25/50
https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 Section 30(1): Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifyiing goods or services as those of the proprietor provided the use -
a) is in accordance withhonest practices in industrial or mmercial matters, and
b) is not such as to take unfair advantage or or be detrimental to thedistincvtive character or repute of the trademark.
31.Section 29 of the Trade Marks Act, 1999, explained what amounts to infringement of the registered trade mark. Whereas Section 30 of the Trade Marks Act prescribes the limits on effect of registered trademark. While the Act under Section 2(1)(h) defines: the word deceptively similar, Therefore, Section 29 has to be read along with Section 30 as well as Section 2(1)(h) to find out, whether there is any identical or similar or deceptively similar adoption of the registered trade mark amounting to infringement. Also, Sections 9 and 47 are the other two sections need to be considered to ascertain whether the defendant can claim protections for 26/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 using the trade name sudalai Aachi Provisions. Section 9, the law prescribes the absolute grounds for refusal of registration. Section 47 of the Act empowers the Registrar of the Appellate Board to remove from the register and imposition of limitation on ground of non-use. So, in the instant case, apart from testing the phonetical and visual similarity, it is also necessary to find out whether the trade mark claim of the plaintiff falls under any of the limitations prescribed under the law.
32.The learned Senior Counself appearing for the plaintiffs, relying upon cateena of judgments, emphasis that the adoption of name “Aachi” as a suffix to “Sudali” is not an innocent adoption, but to derive benefit on the goodwill and reputation of the plaintiff's Trademark. The leaned Senior Counsel submitted that the word “Aachi” has acquired a secondary meaning for spices and food products. It has market throughout the country and several foreign nations. Courts abroad have also upheld the exclusive proprietorship over the word “AACHI”.
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33.Relying upon the judgment of the Hon'ble Supreme Court in T.V.Venugopal v. Ushodaya Enterprises Ltd., and Ors reported in 2011 (3) Scale 182, popularly known as “Eenadu” case, the learned senior counsel submitted that the plaintiff's trade mark “Aachi” has acquired extraordinary reputation and goodwill not only within the State of Tamil Nadu and also across the country and abroad. To exploit the goodwill of the plaintiff's company the defendant has, adopted the word “Aachi” fraudulently with malafide. Permitting the defendant to carry on his trade under the trade name “Sudali Aachi Provision” will definitely create confusion in the minds of the customers.
34.In the “Eenadu case” the right of Ushodaya Enterprises Limited, the proprietor of the trademark “Eenadu” a popular newspaper in Andhra Pradesh was upheld and the appellant was restrained from using the word “Eenadu” to his incense sticks (Agarbathi). The fact indicates that the 28/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 appellant had started using the name “Eenadu” for its Agarbathi and used the same artistic script, font and method of writing the name. Unlike in the present case where the defendant has not adopted the word per se or the dressing.
35.Next, the in Needle Industries (India) Limited v. Sanjay Jaiswal and others reported in 2002(24)PTC 646 (Mad), which is the Division Bench Judgement of this Court, the Court after considering all the earlier judgments covering the point of infringement of trademark across the product, distinguished the judgment of Vishnudas Trading a Vishnudas Kishandas v. Vazir Sultan Tobacco Co. Ltd., Hyderabad reported in MANU/SC/0583/1996 on the ground that the Apex Court at paragraph No.50, has recorded that it is not considering the prejudice likely to be suffered by a trader or manufacturer enjoying registration of trade mark in the event, similar or deceptively similar trademark is allowed to other trader or manufacturer in respect of similar goods or goods marketed through 29/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 common trade channel, since the appeal under consideration confined to the impugned order passed in the application for rectification of the registration.
36.Compare the facts in Needle Industries (India) case and the case in hand, in Needle Industries case, the defendant has identically copied the plaintiff's trademark for his sewing threads. While the plaintiff mark 'pony' is popular among the public for his 'Needles', the defendant had slavishly copied the plaintiff's trade mark 'Pony' for his sewing threads. Needle and thread are cognate goods sold across the same counter. Therefore, confusion or deceptive in the case are likely to occur. When the defendant has failed to offer any explanation whatsoever for adoption of the mark, the Division Bench has rightly concluded that the defendant cannot use the mark 'Pony' and/or Pony label in relation to sewing threads manufactured/marketed by them.
37.The other judgment relied by the plaintiffs is the case of 30/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 Caterpillar Inc. U.S.A. v. Jorange and Ors reported in AIR 1998 Mad
171. In this case, the Hon'ble Supreme Court taking note of the trans-border reputation established by caterpillar with regard to heavy duty vehicles all over the world. Held use of the word Caterpillar even with regard to garments will amount to passing off. Even in this case, the word caterpillar, which is the registered trade mark of the appellant, for heavy duty vehicles, have been slavishly copied by the respondent for its garments. Both the appellant and the respondent claim reputation both in India and Abroad. Considering the reputation of the appellant over 175 countries in all over the world and trade mark CAT, which has secondary meaning for heavy duty vehicles, the Court granted interim injunction restraining the respondent across the goods. The trans-border reputation in 175 countries enjoyed by the Caterpillar cannot be equated to “Aachi” and more particularly against the defendant who is using the name as part of his trade name without any dishonest intention with proper justification of its use. 31/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019
38. In SNJ Distilleries Limited v. Imperial Spirits Private Limited reported in 2010-4-LW 304 relied on by the learned Senior Counsel appearing for the plaintiffs, the Court listing out the test to decide the question of descriptive similarity, has held that the respondent product 'Brihan's Napoleon Brandy' and the appellant product 'Imperial Gold Napoleon Brandy' will misled the consumers. The descriptive similarity and the likelihood will cause confusion in the common minds of the customer since both the products are allowed to be sold in the same counter. Hence the Division Bench of this Court concluded that the plaintiff is entitled for an injunction against the respondent.
39.The facts of the cases which are relied by the plaintiffs distinctively have an identical fact i.e., similarity in the mark. In the instant case, the word 'Aachi' found in the trade name of the plaintiff is not similar or deceptively similar. The trade name 'Sudali Aachi Provision' and the 32/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 mark “Aachi” or “ Aachi Super Stores” are not phonetically or visually similar. They will not confuse even a man of less intelligence and poor recollection. The Aachi of the plaintiff is a brand name. “Sudali Aachi Provision” is the trade name of the defendant. It is not the case of the plaintiffs that the defendant is selling goods carrying the name 'Aachi'. The defendant trade name “Sudalai Aachi Provisions” along with the pictorial device of a old lady to be taken as whole and not to be dissected. Even otherwise, the mark is not identical/similar/deceptive similar to any of the plaintiff registered mark, either under goods or under services. Either as a whole or in part, these two marks does not have any commonness except the alpha aachi, and this court holds that the word aachi is a descriptive word, which is protected for the class of goods or class of services for which trademark is granted. Beyond that, the plaintiffs cannot claim across the goods protection or on the same classification unless the adoption is same / similar or deceptively similar.
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40.It is an admitted case of the plaintiffs that till date, the trade mark 'Aachi Super Store' is a non-user. In Amritdhara Pharmacy v. Satyadeo Gupta case, where the word 'dhara' been used by the appellant and the respondent in common, the Court held that the overall similarity between the two names in respect of the same description of goods, was likely to cause deception or confusion. It is not the case of the plaintiffs that the defendant is deceptively selling any of his goods using the trademark Aachi. If the surmises of the plaintiff that the word 'Aachi' in between 'Sudalai' and “provisions” will cause confusion in the minds of the customer, as if the said provision store is the part of the plaintiff's company outlet, to say in least it is highly preposterous.
41.“Aachi” is a descriptive and common word used prevalently in tamil and the trade mark “Aachi” is per se is weak and vulnerable is a an inferential fact, from numerous suits filed by the plaintiffs in this court under the guise of vigilantly protecting its registered trade marks for the 34/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 goods registered and across the goods. When a word is termed as publici juris and what is descriptive word is explained by the courts in the following two judgments which are worth referring.
42. In Indian Shaving Products Ltd & another -vs- Gift Pack & Another reported in 1998 SCC Online Del 829, the Delhi High Court has observed;
“23. It is a well recognised principle of law that a trader or a businessman can acquire exclusive rights to use a particular word with a dictionary meaning as a trade mark if it is shown to the satisfaction of the Court that it has acquired a secondary meaning or a distinctive character with the constant user for a considerable period of time. The user of the impugned word must be to such an extent that it has lost its primary meaning and has acquired a distinctive character. The moment the same is used it must remind the consumer of the goods of the plaintiffs. It has become so popular with the public by way of goodwill or a reputation that the moment it is used and referred to a picture emerges in the mind of the consumer of the article in question which is being sold under the said trade name. 35/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 Thus the only qualification attached to the use of a descriptive word as a trade mark is that it must have been associated and used in connection with the goods of the plaintiffs for such a considerable period that it has come to acquire an altogether different meaning other than the one which it conveys in the language.” ( emphasis added) “24. Christopher Wadlow in his book on titled “The Law Of Passing Off” at page 315 under the heading “Descriptive terms and secondary meaning” has got this to say on this aspect of the matter” As an entirely separate matter, a trader who chooses to use a name or mark which is prima facie descriptive of his goods, services or business runs the risk that the public will continue to use the term in its descriptive sense rather than identifying it with him. He must prove that the mark has acquired a secondary meaning as denoting his goods, and the burden of doing so is higher in proportion to the descriptive quality of the mark. Even if secondary meaning is proved two problems remain. One is that no trader can be prevented from using the word in its old descriptive sense if he avoids misrepresentation. (as in the isntant case). The second is that other traders may use similar and equally descriptive names or marks as their own and will be allowed to do so even if a degree of confusion results”. He further goes on to comment “A mark which is prima facie descriptive will only be protected if it can be 36/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 shown to have acquired secondary meaning; that is to say if it has become distinctive of the plaintiff. Of course distinctiveness is an essential precondition for all marks, whether descriptive or fancy, but the burden of proof is significantly higher for prima facie descriptive terms”. ( emphsis added).
43.In Andhra Perfumery Works Joint Family Concerns -vs- Karupakula Suryanarayaniah & others reported in 1967 SCC Online Mad 177, this Court has explained the term publici juris as under:-
“7. The first precedent that has to be examined, undoubtedly is the early leading case, Ford v. Foster, (1872) 7 Ch A 611. A point of some importance is that this case appears to be anterior to the English Act, whereby the registration of Trade Marks took form. The history of that matter is to be found in Dr. Ven-kateswaran's Treatise, on the “Three Clarks Rule” (pp. 266-67). It appears that prior to the enactment of the Trade Marks Act, 1875, in the United Kingdom, the practice was that there were several instances of honest concurrent user, in respect of different persons in the same trade and goods. The test for the registration was then formulated by a Rule, for Jessell, 37/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 M.R. said:
“Monstrous injustice would have been done if a man who has had a trade mark for perhaps forty years should lose it because another man who had it for four years had happened to register it first.” The formulated Rule was that an identical mark could be registered for the same goods by different persons, upto the number three, and not beyond. Where, more than three persons had acquired common law rights of user in the Mark, it was treated as public juris or common of the trade. The entire history is very revealing, in the light thrown on the difficulties encountered in engrafting the statute and its requirements, on the prior practice and the state of the common law.
8. To return to (1872) 7 Ch A 611, ( Ford -vs-
Faster) it is not now necessary to set forth the facts of this celebrated case, at any length. But the citation of two passages becomes essential, for both bear intimately on the issue now before us. At page 628, Mellish, L.J., said as follows:
“Then the question is, has it become public juris? And there is no doubt, I think, that a word which was originally a trade mark, to the exclusive use of which a 38/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 particular trader, or his successors in trade, may have been entitled, may subsequently become public juris, as in the case which has been cited of Harvey's Sauce. It was admitted that, although that originally had been the name of a sauce made by a particular individual, it had become public juris, and that all the world were entitled to call the sauce they made Harvey's sauce if they pleased. Then what is the test by which a decision is to be arrived at whether a word which was originally a trade mark has become public juris? I think the test must be, whether the use of it by other persons is still calculated to deceive the public, whether it may still have the effect of inducing the public to buy goods not made by the original owner of the trade mark as if they were his goods. If the mark has come to be so public and in such universal use that nobody can be deceived by the use of it, and can be induced from the use of it to believe that he is buying the goods of the original trader, it appears to me, however hard to some extent it may appear on the trader, yet practically, as the right to a trade mark is simply a right to prevent the trader from being cheated by other persons' goods being sold as his goods through the fraudulent use of the trade mark, the right to the trade mark must be gone.” As we shall see later, these remarks, which were subsequently approbated by Lord Macnaghten in Leahy v. Glover, (1893) 10 RPC 141 (H.L.) still embody 39/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 the law that applies to such a context; but, perhaps, some refinement may be necessary, for what the learned Judge stated was, no doubt, a vital part of the test of public juris; but it is not the entire test. Another passage, which is equally important, because it bears upon the principle of the loss of distinctiveness by piratical uses, is in the judgment of James, L.J., in the same case (P. 625).
“It has been said that one murder makes a villain and millions a hero; but I think it would hardly do to act on that principle in such matters as this, and to say that the extent of a man's piratical invasions of his neighbour's rights is to convert his piracy into a lawful trade.”
44. In the above case, the Division Bench of this Court has relied on the English law and commentaries extracted above when dealing a trade mark infringement case arose between to parties in using the device mark 'Lord Ganesh' and word mark 'Ganesh' in their products (Agarbathi). For the limited purpose to understand the concept of 'publici juris' the above judgement is referred.
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45.In B.K. Engineering Co. v. UBHI Enterprises (Regd.), reported in 1984 SCC OnLine Del 288, the Delhi High Court has held that:-
“47. Lord Paricer in A.G. Spalding (supra) showed that in a passing off action the right in question is a right of property. A plaintiff complains of the invasion of this right to property. The property is in business or goodwill likely to be injured by misrepresentation. If the mark is distinctive of the plaintiff's goods in the eyes of the public or a class of the public any misrepresentation is likely to deceive the ultimate customer. Property is not in the mark, name or get up improperly used by the defendant. But the property is in business or goodwill likely to be injured by misrepresentation. The foundation of the modern tort of passing off is the infringement of right to property. A plaintiff can say that the defendant is infringing his name which is distinctive of his goods. A misuse of that name is hardly consistent with fair or honest trading, as Lord Parker said. The same emphasis was laid by Lord Diplock when he spoke of “commercial honesty” [Warnick v. Townend (supra) at p. 933] and Lord Fraser of “business morality” (at p. 944).41/50
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46.In M/s.Pathanjali Ayurved Limited vs Arudra Engineers Private Limited reported in 2021 (2) MLJ 180, the Division Bench of this Court has held:-
“It is to be seen from section 29(4) of The Act that the plaintiff has to satisfy the following essential conditions to drive home the point that the defendants are diluting their registered trade mark 'Coronil' by using the same for their product:-
(i) Prima-facie strong resemblance of the two marks,
(ii) Senior mark must have reputation in India,
(iii) Junior mark for similar goods/services,
(iv) The use of the junior mark is without due cause, and such use amounts to taking unfair advantage of or is detrimental to the repute/ distinctive character of the mark.” If the above test is applied to the instant case, out of four conditions, except the second condition, the other three conditions are not satisfied.
47. In JSB Cement Llp -vs- Assam Roofing Limited and others 42/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 reported in AIR 2017 CAL 226, the High Court of Calcutta held:-
“49. .......here are two sides to the word “reputation” as used in Section 29(4) of the Act: the quality of the reputation and the extent thereof. The judgment does not dwell on the facet of the quality of the reputation but refers only to the geographical extent thereof. For the purpose of Section 29(4) of the Act, the geographical extent may not cover all parts of India in the sense that the goods or service need not be available in every corner of the territory of India nor does the reputation have to extend to every part thereof. As long as there is reputation of the goods or service attached to the mark in any part of India, it would meet the test of the extent of reputation. But the quality of the reputation is an altogether different matter. It is possible that a product or any service bearing a registered mark may be available only in a limited territory and even in one small corner of India. As long as such reputation is overwhelming, almost to the extent that there is a secondary meaning associated with the mark, particularly a word- mark, the limited geographical extent thereof may be immaterial as long as such reputation is somewhere in India; and it is certainly not required of the reputation to be of a pan-India magnitude. But the reputation must be of such quality that it transcends the nature of the goods or 43/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 service that it is attached to. Loosely speaking, a mark- particularly a word-mark-is said to have a secondary meaning when, immediately upon seeing or reading the mark-particularly a word-mark-the goods or service associated with the mark-particularly a word-mark-flashes across the mind simultaneously with what the mark- particularly a word-mark-conveys in its ordinary sense. That is the real test and it is in such test that the respondents fail.” ( emphasis added)
48.In Vishnudas Trading v. Vazir Sultan Tobacco Co. Ltd., reported in (1997) 4 SCC 201, the Hon'ble Supreme Court has held that;
“In our view, if a trader or manufacturer actually trades in or manufactures only one or some of the articles coming under a broad classification and such trader or manufacturer has no bonafide intention to trade in or manufacture other goods or articles which also fall under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under such broad classification and by that process preclude the other traders 44/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 or manufacturers from getting registration of separate and distinct goods which may also be grouped under the broad classification. If registration has been given generally in respect of all the articles coming under the broad classification and if it is established that the trader or manufacturer who got such registration had not intended to use any other article except the articles being used by such trader or manufacturer, the registration of such trader is liable to be rectified by limiting the ambit of registration and confining such registration to the specific article or articles which really concern the trader or manufacturer enjoying the registration made in his favour. In our view, if rectification in such circumstances is not allowed, the trader or manufacturer by virtue of earlier registration will be permitted to enjoy the mischief of trafficking in trade mark. Looking to the scheme of the registration of trade mark as envisaged in the Trade Marks Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent 45/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019 registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression “goods” and “description of goods” appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act.” 46/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019
49.To sum up, the word 'Aachi' is a descriptive word, used by the plaintiff for its products. The plaintiff is entitled for protection is so far as the goods or services for which it has valid registration, subject to the proof of its use and limitations under Section 30 of the Act. The word Aachi, has not gained any secondary meaning going by the test laid in JSB Cement LLP cited supra, wherein the Division Bench of the Calcatta High Court as vividly explained, when a mark gains secondary meaning, in the following terms, “the reputation must be of such quality that it transcends the nature of the goods or service that is attached to. Loosely speaking a mark – particularly a word-mark is said to have secondary meaning when, immediately upon seeing or reading the mark particularly the word-mark the goods or service associated with what the mark particularly a work mark flashes across the mind simultaneously with what the particularly a word marks conveys in its ordinary sense.” 47/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019
50.The word Aachi is available in public domain and a publici juris. However, not open to identical/similar/deceptive adoption by others in respect of goods and services for which the plaintiff holds valid registration. The registration of trademark can be used as shield by the plaintiffs to protect the mark from any identical or similar or deceptively similar imitations for the goods or service for which it has valid registration. It cannot to used as sword against anyone who use the word 'Aachi' per se or in combination for their goods or services without any dishonest or malafide intention. Hence, Issue No. (i) is answered accordingly.
51.The plaintiff witness admits that till date they have not engaged in any business in the name of “Aachi Super Stores”. The registration obtained in the year 2008 is yet to be put to use. Based on evidence and the law governing infringement, this Court holds that there is no case made out to prove infringement as defined under Section 29(2). The honest adoption of the name Sudalai Aachi by the defendant is protected under Section 30(2) 48/50 https://www.mhc.tn.gov.in/judis/ C.S.No.558 of 2018 and A.No.5136 of 2019
(b) of the Trade mark Act. This Court finds no similarity or deceptively similarity among the word mark Aachi or Aachi Super Stores compared with the trade name Sudalai Aachi Provisions with its pictorial device. Accordingly, Issues (ii) and (iii) are held in negative.
52. Since issues (i) to (iii) are held against the plaintiffs, the plaintiffs are not entitled for the reliefs sought in the suit. Accordingly, the Civil Suit is dismissed with costs. Consequently, connected Application is closed.
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Index :Yes
Internet :Yes/No.
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ari
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