Madras High Court
Mr.A.D.Padmasingh Isaac vs / on 29 June, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
C.S.(Comm.Div.) No.54 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.06.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
C.S.(Comm.Div.) No.54 of 2022
and O.A.Nos.155, 156 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 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
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.54 of 2022
Mr.Aravind
Proprietor of Hotel Sri Aachi
MC Road, Sathyamangalam, Poigai
Vellore District - 632 114. ... 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 Trade Marks 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 him
from manufacturing, selling, advertising and offering for sale or providing
services using the name 'HOTEL SRI AACHI' or any other similar Trade
Mark name of similar sounding expression in any media and use the same in
name board, invoices, letter heads and visiting cards 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 and use the
same in pouches, packets or use the mark in invoices, letter heads and
visiting cards or part of their restaurant, hotel name any other trade literature
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C.S.(Comm.Div.) No.54 of 2022
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 'HOTEL SRI AACHI' 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, restaurant, business or goods as and for that of the
plaintiffs.
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C.S.(Comm.Div.) No.54 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 'HOTEL SRI AACHI' 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 'HOTEL SRI AACHI' 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
**********
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C.S.(Comm.Div.) No.54 of 2022
JUDGMENT
The suit was filed in respect of alleged trademark infringement and passing off. Various remedies pertaining thereto had been prayed for. In spite of service of suit summons on the sole defendant on 06.04.2022, there was no representation for the defendant. Consequently, the defendant was set ex parte on 14.06.2022 and the matter was posted for recording the ex parte evidence of the plaintiff.
2. The plaintiff examined Mr.B.Gnanasambandam, its Senior Manager and Legal and Secretarial, as P.W.1. In course of the examination-
in-chief of P.W.1, 31 documents were exhibited as Exs.P1 to P31.
3. Learned counsel for the plaintiff points out that the plaintiffs have used the mark AACHI from the year 1995 in relation to a range of food products. As regards the restaurant business, it is stated that the mark has been used since the year 2014. The registration certificates in relation to the registration of device marks and word marks in multiple classes have been 5/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.54 of 2022 exhibited. Of particular relevance to the suit is Ex.P24, which is the registration certificate in relation to the device mark and word mark AACHI CHETTINAD restaurant. Similarly, Ex.P26 is the registration certificate in relation to the word mark AACHI KITCHEN in class 43, which deals with restaurant services. The plaintiff has also exhibited the name board of its restaurant as Ex.P29 and the name board of the defendant's restaurant as Ex.P31.
4. On considering the above evidence and, in particular, on comparing the registered word and device mark of the plaintiffs with the impugned mark (Ex.P31), the plaintiff has established that it is entitled to the reliefs prayed for. Since the defendant was set ex parte, the relief prayed for at prayer (d) of paragraph 42 for rendition of accounts cannot be acted upon. Therefore, the said relief is not granted. On the loser pays principle, the plaintiff is entitled to costs.
5. In the result, the suit is decreed in terms of prayers (a), (b) and (c) of paragraph 42 of the plaint. As regards the claim for costs, the defendant 6/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.54 of 2022 is directed to pay a sum of Rs.1,50,000/- as costs to the plaintiffs. This sum includes Court fees, reasonable lawyer's fees and other expenses.
Consequently, the connected O.A.Nos.155 and 156 of 2022 are closed.
29.06.2022 rna Index : Yes / No Internet : Yes / No Plaintiff side Witness:
P.W.1 - B.Gnanasambandam Plaintiff side Documents:
Exhibits Documents
Ex.P1 The Authorization letters dated 18.06.2022.
Ex.P2 Original Board Resolution dated 12.04.2021.
Ex.P3 Printouts of list of products manufactured and marketed by the
Plaintiffs bearing the trademark AACHI. (mentioned in 65B certificate) Ex.P4 Photocopy of Certificate of incorporation dated 30.06.2006 of Aachi Masala Foods P Ltd. (Original seen and returned) Ex.P5 Photocopy of Certificate of Commercial Tax Registration of Aachi Masala & Foods (P) Ltd dated 10.07.2006. (Original seen and returned) 7/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.54 of 2022 Exhibits Documents Ex.P6 Photocopy of Dissolution Deed between Mrs.Rani Pandian and the Mr.A.D.Padmasingh Isaac dissolving the partnership firm, Naveen Products dated 31.03.2007. (Original seen and returned) Ex.P7 Photocopy of Certificate of Commercial Tax Registration and Central Sales Tax of Aachi Spices & Foods dated 28.12.2006 and 03.01.2007. (Original seen and returned) Ex.P8 Photocopy of 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. (Original seen and returned) Ex.P9 Photocopy of Certificate of incorporation of Aachi Spices and Foods P Ltd. dated 17.03.2010. (Original seen and returned) Ex.P10 Photocopy of Memorandum of Association of Aachi Spices and Foods P Ltd. dated 06.03.2010. (Original seen and returned) Ex.P11 Photocopy of Trade Mark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt Ltd dated 21.04.2010. (Original seen and returned) Ex.P12 Photocopy of Trade Mark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods P Ltd dated 21.04.2010. (Original seen and returned) Ex.P13 Printout of the Certificate of incorporation of M/s.Heavenly Foods (P) Ltd., and Memorandum and Articles of Association. (mentioned in 65B certificate) Ex.P14 Photocopy of Trademark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods P Ltd., dated 04.03.2020. (Original seen and returned) Ex.P15 Photocopy of Trademark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt Ltd., dated 04.03.2020. (Original seen and returned) 8/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.54 of 2022 Exhibits Documents Ex.P16 Photocopy of Trade Mark License user Agreement between Mr.A.D.Padmasingh Isaac, Aachi Spices and Foods and Heavenly Foods (P) Ltd. (Original seen and returned) Ex.P17 Certified copy of Plaintiffs Advertisement in RITZ Magazine. Ex.P18 (Series) (16 pages) Photocopies of Registration Certificates of the mark AACHI in various countries around the world. (Original seen and returned) Ex.P19 Photocopy of Madrid Protocol Registration in classes 29, 30, 43 with respect to the Trademark AACHI (Word) & Aachi (Device) designating 107 & 117 countries valid and subsisting as on date. (Original seen and returned) Ex.P20 Certified copy of the sample sales invoices for the year 2000 to 2020. (1 to 8 pages verified with original and other pages are certified copies) Ex.P21 Certified copy of Chartered Accountant certificates.
Ex.P22 Certified copy of the sample advertisement Invoices and expenses.
Ex.P23 Photocopy of Legal use certificate of Trade Mark No.838786 in Class 30, dated 29.01.1999. (Original seen and returned) Ex.P24 Photocopy of Legal use certificate of the Trademark No.1116254 in Class 30, dated 03.07.2002. (Original seen and returned) Ex.P25 Photocopy of the Legal use certificate of the Trademark No.1479159 in Class 30, dated 17.08.2006. (Original seen and returned) Ex.P26 Photocopy of the Legal use certificate of the Trademark No.1715718 in Class 43, dated 30.07.2008. (Original seen and returned) 9/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.54 of 2022 Exhibits Documents Ex.P27 Photocopy of the Legal use certificate of the Trademark No.2965624 in Class 43, dated 18.05.2015. (Original seen and returned) Ex.P28 Printout of the order passed by Trademark Trial and Appellate Board, United States Patent and Trademark office dated 13.09.2016. (mentioned in 65B certificate is filed) Ex.P29 Printout of AACHI KITCHEN Name Board. (mentioned in 65B certificate is filed) Ex.P30 Original AACHI KITCHEN Menu card. Ex.P31 Printouts of the Defendant's name board and visiting card.
(mentioned in 65B certificate is filed) 10/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.54 of 2022 SENTHILKUMAR RAMAMOORTHY,J rna C.S.(Comm.Div.) No.54 of 2022 and O.A.Nos.155, 156 of 2022 29.06.2022 11/11 https://www.mhc.tn.gov.in/judis