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A.D. Padmasingh Isaac & Another v/s M/s. Pooja Food Products, Dollygunj

    C.S. No. 491 of 2016

    Decided On, 26 August 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

    For the Plaintiffs: T. Hemalatha, Advocate. For the Defendant: Exparte.



Judgment Text

(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 Sections 27(2), 29, 134 and 135 of the Trade Marks Act, 1999, praying to pass judgment and decree for:

(a) granting a permanent injunction, restraining the defendant, by itself, its servants, agents, distributors, or anyone claiming through him from manufacturing, selling, advertising and offering for sale using same or similar get up, and colour scheme used by the defendant’s shown in Document No.2, 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 and deceptively similar to the plaintiff’s Trademark AACHI MASALA KULAMBU CHILLY POWDER as shown in Document No.1 or in relation to any masala items and use the same pouches, packets of masalas and spices 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, or phonetically similar to the plaintiffs’ registered trademark No.1318495, or in any manner infringe the 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 and offering for sale using same or similar get up, and colour scheme used by the defendant shown in Document No.2 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 trade mark which is in any way visually or deceptively or phonetically similar to the plaintiffs’ trademark AACHI MASALA KULAMBU CHILLY POWDER as shown in Document No.1 or in relation to any masala items and use the same pouches, packets of masalas and spices 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, or phonetically similar to the plaintiffs’ Trademark AACHI MASALA KULAMBU CHILLY POWDER as shown in Document No.1 or in any manner pass off the plaintiff’s 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/visually similar POOJA KULAMBU CHILLY POWDER and packets in the Colour Scheme and Get up as shown in Document No.2 or other deceptively similar trade mark used in the pouches and packets in respect of masalas.

(d) directing the defendant to render an account of profits made by them by the use of the impugned trademark and get up as shown in Document No.2 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.)

(The case has been heard through Video Conferencing)

1. The suit is for permanent injunction restraining the defendant from using the similar trademark of the plaintiffs in the defendant’s product, thereby committed infringement and passing off.

2. According to the plaintiffs, the plaintiffs are the registered trademark holder of “Aachi”and it has been used for various goods produced by the plaintiffs including masala powder and it has obtained registration for various goods under Clause 29, 30, 32, 03, 42, 05, 31, 34, 21, and 27. It has wide market throughout the country and across the country. Having several lakhs of money for its promotion, the name “Aachi”has received acceptance from the public and has gained good will among the consumers. While so, the defendant has copied the plaintiffs’ mark and label for their product ‘Kulambu Chilli Powder’ and taking undue advantage of goodwill of the plaintiffs, the deceptively similar adoption of the plaintiffs’ trademark is infringement of registered mark and violation of the protection given to the plaintiffs under the statute. Alleging that the deceptively similar label used by the defendant on its pouches and packets, which is visually and phonetically similar to the plaintiffs’ registered trademark No.1318495, amounts to infringement and therefore, the relief of perpetual injunction sought against the defendant and consequential relief of rendition of accounts and seizer of infringed material are prayed.

3. The suit is of the year 2016. On 02.08.2016, being a prima facie satisfied about the case of the plaintiffs, interim injunction was granted against the defendant. Thereafter, inspite of notice, there was no representation on behalf of the defendant/respondent and hence, the order of injunction was made absolute on 31.08.2016. Fresh suit summon was served on the sole defendant on 19.03.2021 through Court. Even thereafter, there was no representation. Hence, on 23.06.2021, the defendant was called absent, set exparte.

4. The Additional Master-I has recorded the exparte evidence on behalf of the plaintiffs. One B.Gnana Sambandam, General Manager-Legal & Statutory of the plaintiffs company has filed his proof affidavit and marked 16 exhibits. The plaintiffs trade mark ‘Aachi’ is a registered trade mark under Clause 30. The legal user certificate is marked as Ex.P13. The label of the plaintiffs is marked as Ex.P14 and the label

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of the defendant is marked as Ex.P16. The rest of the documents are related to the company formation, composition and its turnover shown its market presence. 5. Comparing Ex.P14 and Ex.P16, this Court finds that the colour dress and get up of the plaintiffs product ‘Aachi Kulambu Chilli Masala’ and the colour dress and get up of the defendant product ‘Pooja mixed masala’ are visually deceptively similar for any common man with ordinary prudence, will get mislead and therefore, this Court hold that the plaintiffs are entitled for the relief sought for. Accordingly, the Civil Suit is allowed with costs.
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