At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN
For the Applicant: G. Kalyan Jhabakh, Advocate. For the Respondents: -----
(This application filed under Order XIV Rule 8 of O.S Rules read with Order XIII-A of the Code of Civil Procedure, to pass a summary judgment under Order XIII-A of the Code of Civil Procedure (as amended) to decree the suit against the defendants as prayed for in the plaint.)
Application filed by the plaintiff seeking a Summary Judgment under Order XIII A of the Code of Civil Procedure.
2. The suit had been filed under Sections 134 and 135 of the Trade Marks Act 1999 and the relevant provisions of the Civil Procedure Code, the Original Side Rules of the Madras High Court and the Commercial Courts Act 2015 seeking protection from infringement of the registered Trademark 'AROKYA' of the plaintiff. The plaintiff, Hatsun Agro Product Ltd., is a company incorporated under the Companies Act 1956 primarily engaged in food processing industry particularly with respect to dairy products. They have an established market in various places in South India, and have expanded their dairy products from ice creams, dairy whitener, skimmed milk powder to ghee, butter, cooking butter, milk, varieties of curd, paneer and butter milk. The plaintiff has established goodwill and reputation not only within the country but also outside the country and they export products to 32 other countries in Africa, Middle East and East Asia. The plaintiff's good will and reputation are reflected in the increasing annual turn over and also increased promotional expenses. The annual turn over for the financial year 1994-1995 was Rs.734.59 lakhs and the promotional expenses for the same financial year was Rs.50.67 lakhs. The annual turn over has increased and multiplied to a sum of Rs.4,76,029.89 lakhs in the financial year 2018-2019 and the promotional expenses for the corresponding financial year has also increased to Rs.10,620.56 lakhs. The sales turn over in respect of the products marketed under the descriptive Trademark AROKYA for the financial year 2018-2019 was Rs.2,93,534.04 lakhs and the promotional expenses for promoting the Trademark AROKYA in the corresponding financial year was Rs.3,833.83 lakhs. It is thus seen that the plaintiff has established goodwill and reputation not only for a wide range of products which they manufacture and market but also very specifically for the products sold under the Trademark AROKYA. The plaintiff has also registered the Trademark AROKYA as a word mark not only in English but also in Malayalam and Telugu and also as device mark in Tamil. They have registered the word mark AROKYA and the device AROKYA in Classes 29, 30, 31 & 32 to the schedule of the Trade Marks Act, 1999.
3. It is to be mentioned that among the products in Clause 30, salt is also included. The grievance of the plaintiff is that the defendants have commenced to market rock salt under the name AROGYA RAHASYA. The usage of the mark AROGYA RAHASYA by the defendants is stated to be with the sole intention to encroach upon the reputation and goodwill built by the plaintiff for the Trademark AROKYA. The defendants have not registered their mark. However, they use the symbol TM to mislead the general public that their mark is also registered under the Trademarks Act 1999. As a matter of fact, the defendants had abandoned the registration application which they made in the year 2010. They have however applied for further registration in the year 2019 which has been done after notice was issued by the plaintiff calling upon the defendants not to infringe the registered mark of the plaintiff. It is under these circumstances that the suit had been filed seeking protection from infringement the registered Trademark AROKYA.
4. The defendants have been set exparte by order dated 24.08.2020 since they did not answer the summons issued to them. The plaintiff then filed the present application seeking a Summary Judgment in view of the uncontroverted facts stated in the plaint.
5. Heard arguments advanced by Mr. G.Kalyan Jhabakh, learned counsel for the plaintiff.
6. The plaintiff has come to Court seeking protection of their registered Trademark AROKYA from infringement by usage of the offending mark AROGYA RAHASYA by the defendants.
7. The mark of the plaintiff is shown below:-
8. The mark of the defendants is shown below:-
9. The plaintiff had also issued a notice to the defendants on 29.07.2019 calling upon them to cease and desist from using the Trademark AROGYA RAHASYA and to withdraw from the market the product Rock Salt sold under the name AROGYA RAHASYA and to withdraw the Trademark and Copy Right applications. Though the defendants had received the notice on 01.08.2019, they have not replied to the same.
10. Rule 1 of Order XIII-A is as follows:-
“1. Scope of and classes of suits to which this order applies.— (1) This order sets out the procedure by which courts may decide a claim pertaining to any Commercial Dispute without recording oral evidence.”
11. Rule 3 is as follows:-
“3. Grounds for summary judgment.— The court may give a summary judgment against a plaintiff or defendant on a claim if it considers that—
(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and
(b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.”
12. Mr.Kalyan Jhabakh relied on the documents already filed along with the plaint and stated that they can be taken as documentary evidence. The plaintiff has also filed a compact disk containing videos of various advertisements promoting the Trademark AROKYA. The plaintiff had the benefit of an ex-parte injunction which was granted on 09.03.2020 restraining the defendants from infringing the registered Trademark AROKYA.
13. It is seen from the pictorial representation extracted above that there is every possibility of the general public being misled into thinking that the product of the defendants is actually a product of the plaintiff in view of the similarity in the name AROKYA used by the plaintiff and the name AROGYA used by the defendants. The difference is just a letter. By using the word 'G' instead of 'K', the defendants cannot claim that they have adopted a totally different Trademark. Pronunciation of both the marks are practically the same.
14. I hold that it would be extremely naive to presume that the customers and the distribution channel operators would be able to differentiate between the two names and to decipher that they emanate from two different companies. Even though the defendants have used the mark for the product rock salt, the plaintiff has also registered the mark AROKYA under Clause 30 which also includes the product salt. I hold that the confusion caused by the defendants by continued usage of the Trademark AROGYA RAHASYA cannot be permitted to continue. The documents filed by the plaintiff are marked as follows-
(1) Ex.A-1 = Incorporation Certificates of the plaintiff company during the year 1986 to 1998;
(2) Ex.A-2 = Registration of branch certificate issued by the Government of Tamil Nadu, Commercial Taxes Department dated 06.08.2008;
(3) Ex.A-3 = Board Resolution of plaintiff company authorizing Mr.B.Muthunathan to represent the plaintiff company dated 09.02.2016;
(4) Ex.A-4 = Trademark Certificates obtained by the plaintiff for their trademark AROKYA during the year 1995-2018;
(5) Ex.A-5 = Chartered Accountant Certificate for Annual Sales turnover and Sales Promotion Expenses for the financial years 1994-95 to 2018-19 dated 15.05.2019;
(6) Ex.A-6 = Chartered Accountant Certificate for Annual Sales turnover and Sales Promotion for AROKYA Brand from the financial years 2013-14 to financial years 2018-19 dated 17.03.2016 to 15.05.2019;
(7) Ex.A-7 = ISO Certificates obtained by the plaintiff dated 14.10.2018;
(8) Ex.A-8 = FSSAI Certificates obtained by the plaintiff for its various plants dated 28.03.2017 to 21.05.2019;
(9) Ex.A-9 = Invoices for Advertisement expenses incurred by the plaintiff company during the year 2000 to 2013;
(10) Ex.A10 = Advertisements/Pamphlets of the plaintiff dated Nil;
(11) Ex.A11 = Articles/Advertisements published in newspapers and journals dated Nil;
(12) Ex.A12 = Screenshots of the television advertisements of the plaintiff company dated Nil;
(13) Ex.A13 = Statement of Advertisements made by the plaintiff dated 07.11.2013;
(14) Ex.A14 = List of distribution channel dated Nil;
(15) Ex.A15 = Plaintiffs' Product package dated Nil;
(16) Ex. A16 = Defendants' Product package dated Nil;
(17) Ex.A17 = Defendant's Trademark Applications dated 21.10.2010 & 17.08.2019; and
(18) Ex.A18 = Cease and Desist Notice issued on behalf of the plaintiff.
(19) MO-1 = Compact Disk containing the videos of various advertisements promoting the trademark AROKYA of the plaintiff.
15. I further hold that calling upon the plaintiff to let in oral evidence would be of no avail since the d
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ocuments filed cannot be controverted, disputed or denied. I am also conscious that some of the documents are copies but they can be taken on record. The decision taken by the defendants to abstain from participating in the judicial proceedings has also to be noted and it is clear that they have no defence to put up against the claim made by the plaintiff. 16. In view of all these reasons, I hold that the plaintiff is entitled to a Summary Judgment as provided under Order XIII-A of the Code of Civil Procedure with costs. 17. In the result, this Application is allowed with costs. Costs to be paid in accordance with the amended Section 35 of the Code of Civil Procedure. 18. The Registry is delegated and directed by this Court to determine the costs and the plaintiff is permitted to file their Bill of Costs relating to legal fees and expenses and any other expenses incurred in connection with the proceedings. On the filing of the Bill of Costs, the Registry may determine the quantum of the costs.