Madras High Court
Anand Swaroop vs Bharatiya Anand G Food Products on 3 September, 2019
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.S.No.129 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.09.2019
Coram
The Honourable Mr.Justice N.SATHISH KUMAR
C.S.No.129 of 2008
Anand Swaroop
Trading as
A.P.Products,
21-2-65, Machlikaman,
Hyderabad – 500 002.
Andhra Pradesh.
...Plaintiff
Versus
Bharatiya Anand G Food Products,
15-6-523, Begum Bazaar,
Hyderabad – 500 012
And Having factory at
18-7-445/10 Saraswathi nagar
Lalitha Bagh Road,
Gowlipura
Hyderabad – 500 053
...Defendant
Prayer:
This suit is filed under Order VII Rule 1 of C.P.C read with Order IV
Rule 1 of the Original side Rules and Section 27, 134 & 135 of the
Trademarks Act, 1999 for the following reliefs:
(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 for sale using the
Trademark Bharatiya ANAND upon the goods, spices of all kinds, trading
style or in any media and use the same in invoices, letter heads and
visiting cards or by using any other trade mark which is in any way
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C.S.No.129 of 2008
visually, phonetically, structurally or deceptively similar to the plaintiff's
Registered Trade Mark ANAND or in any manner infringing the plaintiff's
Registered Trademark ANAND or in any manner infringing the plaintiff's
Registered Trade Mark Nos.386785 and 386786.
(b) Directing the defendant to surrender to the plaintiffs all the
spices, packing material, cartons, advertisement materials, and hoardings,
letter-heads, visiting cards, office stationery and all other materials
containing/bearing the Trade Mark ANAND or other deceptively similar
Trade Mark in respect of spices.
(c) For a preliminary decree in favour of the plaintiffs, directing the
defendant to render an account of Profits made by them by the use of the
Trade Mark ANAND on the goods referred and for a final decree in favour
of the plaintiffs for the amount of the profits found to have been made by
the defendants, after the defendants have rendered accounts.
(d) directing the defendant to pay to the plaintiffs the costs of the
suit.
For Plaintiff : Ms.Gladys Daniel
For Defendant : Set ex parte
vide order dated 03.07.2019
JUDGMENT
The present suit has been filed by the plaintiff for the reliefs morefully described in the prayer portion of this judgment.
2. When the matter was called on 03.07.2019, there was no representation for the sole defendant. Though the suit summons were served on the defendant and the name of the defendant being printed in http://www.judis.nic.in 2/8 C.S.No.129 of 2008 the cause list, none appeared on behalf of the defendant. Therefore, the sole defendant was ex parte by this Court and the Registry was directed to list the matter before the learned Additional Master for recording the ex parte evidence. Thereafter, when the matter was listed before the learned Master on 26.08.2019, the plaintiff filed the Proof Affidavit and on the side of the plaintiff, only one witness, viz., P.W.1, Anand Swaroop, Manager of the Plaintiff concern was examined and 10 exhibits were marked viz., Ex.P1 to Ex.P10.
3. Today(03.09.2019), this matter is taken up for final disposal. 4.1. It is the case that the plaintiff is a proprietary concern involved in the business of manufacturing and marketing spices under the Trade Mark “ANAND” in the year 1958. The plaintiff concern conceived and adopted the trademark “ANAND” with respect of spices. An application was filed by the plaintiff before the Trade Mark Registry at Madras under
Nos.386785 & 386786 in Class 30 with respect of spices. Thereafter, on 23.02.1982, the plaintiff got registered the trademark “ANAND” and became the registered proprietor of the said trademark. The said registrations are valid & subsisting and the same were renewed for a period of seven years from 23.02.2003. The plaintiff has never assigned or licensed the Trademark “ANAND” in favour of any person at any time.
http://www.judis.nic.in 3/8 C.S.No.129 of 2008 4.2. The plaintiff has been using the trademark “ANAND” with respect to spices extensively without any opposition from any quarters since 1958 and has a great goodwill and reputation over the said trademark. In order to popularize their goods in the market, the plaintiff made substantial investment for advertisements. At first, the plaintiff used the trademark “ANAND” with respect of Garam Masala. Now, the plaintiff diversified and started using the said trademark with respect of various spices such as Chilly Powder, Turmeric Powder, Dhaniya Powder, etc., At present, the plaintiff markets its various spices in polythene pouches and card-board boxes in a unique and stylized manner.
4.3. While so, differences arose between the plaintiff and his sons in the year 2007. The plaintiff made every attempt to resolve the matter amicably with his sons but the same were resulted in failure. The defendant in this case is none other than the own sons of the plaintiff. The plaintiff came to know that the defendant has started a rival business of manufacturing and marketing spices under the trademark “Bharatiya ANAND”. The defendant is surreptitiously using the identical trademark which is similar to that of the plaintiff's registered trademark “ANAND”, with the addition of a prefix in small italicized font which is not clearly visible to a purchaser of average intelligence. The defendant is well aware of the registration in favour of the plaintiff for over two decades http://www.judis.nic.in 4/8 C.S.No.129 of 2008 and also very well aware of the goodwill and reputation of the trademark “ANAND”.
4.4. The defendant is manufacturing and selling spices pouches which are identical to the plaintiff's size. The plaintiff's logo “ANAND” is written in bold letters within a red cylindrical device. The defendant has adopted the identical style of depicting its trademark along with the prefix “Bharatiya” in an italicized manner which is much smaller than the word “ANAND”. The offending trademark of the defendant is phonetically and structurally identical to that of the plaintiff's trademark. The defendant has no plausible explanation for adopting an identical trademark with an inconspicuous prefix. Therefore, left with no other alternative, the plaintiff has filed the present suit for the reliefs stated supra.
5.1. The learned counsel for the plaintiff fairly submitted that the plaintiff's trademark “ANAND” is a registered trademark. She further submitted that as a prior user of the trademark “ANAND”, the plaintiff has been using the said trademark since 1958. She would also submit that the unauthorized use of the plaintiff's registered trademark by the defendant is causing confusion in the minds of the consumers and make them believe that the goods purchased by them are manufactured by the plaintiff.
http://www.judis.nic.in 5/8 C.S.No.129 of 2008 5.2. The learned counsel for plaintiff would contend that the defendant has no right to adopt and use the registered trademark of the plaintiff. She would also contend that the defendant deliberately adopted the registered trademark of the plaintiff only with an evil intention to ride on the goodwill and reputation gained by the plaintiff over the trademark “ANAND”. She further contended that the said mala fide acts of the defendant will mislead the public and make them believe that the goods being offered for sale by the defendant emanates from the plaintiff and that the defendant had associated with the plaintiff in business.
5.3. The learned counsel would argue that in the guise of the plaintiff's trademark, the defendant is trying to pass off their goods as that of the plaintiff's. She would also argue that the defendant's such act of passing off are resulting in interalia, dilution of the value, goodwill, reputation and proprietary rights, which exist exclusively in favour of the plaintiff's trademark “ANAND”. She therefore prayed that the aforesaid mala fide activities of the defendant may be considered as the calculated attempts made by the defendant to infringe the trademark/logo belonging to the plaintiff and to pass off their products. She further prayed that the defendant may be restrained from infringing the registered trademark of the plaintiff and passing off their products, otherwise, the plaintiff will put to irreparable loss and hardship.
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6. Heard the learned counsel for the plaintiff and perused the materials available on record.
7.1. On perusing the Proof Affidavit filed by P.W.1 and also the documents which were marked as Exs.P1 to P20, this Court finds that the plaintiff had truly registered the trademark, “ANAND”, which is clearly evident from Ex.P3 & Ex.P4, Registration Certificates of Trademark Nos.386785 & 386786 dated 23.02.1982 with renewal dated 28.08.1992 respectively. It is also seen that the plaintiff is the prior user of the trademark “ANAND” since 1958. Apart from that, on comparing the Ex.P9, Original Plaintiff's label with Ex.P10, Original Defendant's label, it comes to the light that the defendant had adopted the registered trademark/logo of the plaintiff.
7.2. It is crystal clear that the plaintiff's registered trademark is “ANAND” and the defendant had adopted the said registered trademark of the plaintiff by simply using a prefix “Bharatiya” in an italicized manner which is much smaller than the word ANAND. It is seen that the defendant's offending trademark, “Bharatiya ANAND” is phonetically and structurally identical to that of the plaintiff's trademark. It is also seen that the defendant had adopted the registered trademark of the plaintiff http://www.judis.nic.in 7/8 C.S.No.129 of 2008 N.SATHISH KUMAR, J., mrr only with a mala fide intention to spoil the goodwill and reputation earned by the plaintiff's company among the consumers/general public and therefore, the same would not only amounts to infringement of the plaintiff's registered trademark but also it would amounts to passing off. As far as prayer (a) & (b) are concerned, the plaintiff proved the suit claim against the defendant beyond doubts.
8. Taking note of the facts and circumstances of the case, this Court is inclined to partly decree the suit. Accordingly, this Civil Suit is partly decreed in respect of prayer (a) & (b), however, the same is dismissed in respect of prayer (c) & (d).
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