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Thayar Food Products, Patnership firm, Chennai & Others v/s M. Sundaram & Others

    Original Side Appeal Nos. 238, 239 of 2014 & Civil Miscellaneous Petition No. 22440 of 2017 & Miscellaneous Petition No. 1 of 2014 & Writ Petition Nos. 16746 of 2010, 17428 of 2012

    Decided On, 17 September 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN & THE HONOURABLE MR. JUSTICE N. SESHASAYEE

    For the Appearing Parties: A. Prabhakara Reddy for APR Associates, T.V. Ramanujam, V.K. Sathiyamoorthy, Advocates.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue Writ of Certiorari to call for the records of the case in ORA/185/09/TM/CH dated 04/05/2012 on the file of the first respondent and quash the same.)

M. Sathyanarayanan, J.

1. Heard both sides.

2. The suit in C.S.No.196 of 2007 was filed by Mr.M.Sundaram, sole proprietor of Thayar Dairy, Ranganathan Street, T.Nagar, Chennai-17 as against the Thayar Food Products and 3 others for the following reliefs:

''a) For permanent injunction restraining the defendants, their agents or servants from continuing or repeating the infringement of the Plaintiff's registered trade mark ''Thayar'' or continuing to commit any infringement of the Plaintiff's name and mark ''Thayar'' or the name, colour combination, etc., of the expression ''Thayar'' or any phonetically similar or imitation thereof, and passing off the same as that of the Plaintiff;

b) To render true and faithful accounts of all the profits earned by them through service and sale of the offending marks, and pay the amount found due on such taking of accounts to the Plaintiff;

c) To surrender to the Plaintiff all the impugned products produced, manufactured and by the defendants, containing the same name of the offending marks with a documents pertaining thereto.

d) For costs of this suit.

3. The suit in C.S.No.300 of 2007 was filed by Thayar Food Products, Chennai-33 as against Mr.M.Sundaram, Sole Proprietor, Thayar Dairy for the following reliefs:

''a) Restraining the defendant his men, agents, servants or any one claiming through him from in any manner infringing the Plaintiff's trademark ''THAAYAR'' by using the offending trademark THAYAR or any other trademark which is identical or similar or deceptively similar to that of the Plaintiff's reputed trademark THAAYAR;

b) Permanent injunction restraining the defendant his men, agents, servants or any one claiming through him from in any manner passing off his products as that of the Plaintiff by using the offending trade mark ''THAAYAR'' or any other trademark which is identical or similar or deceptively similar to that of the Plaintiff's reputed trademark ''THAAYAR''.

c) Directing the defendant to surrender to the Plaintiff the entire stocks pouches, with the infringing artistic work ''THAAYAR'' and unused infringing Trade Mark label ''THAYAR'' together with blocks and dies for destruction.

d) Directing the defendants to render a true and faithful account of the profits earned by him through the sale of their products bearing the infringing label ''THAYAR'' which is similar or deceptively similar to the Plaintiff's Trade Mark and copyrighted label ''THAAYAR'' and directing the payment of such profits to the Plaintiff.

e) Directing the defendants to pay the costs of the suit to the plaintiff.

4. The suit in C.S.No.196 of 2007 after contest came to be decreed except the prayer relating to infringement without cost and C.S.No.300 of 2007 came to be dismissed except the prayer relating to infringement and in respect of the prayer relating to infringement prayed by both the parties in both the suits, it was left open to both the parties to work out their remedy before the appropriate forum.

5. As against the judgment and decree dated 15.09.2014 made in C.S.Nos.196 and 300 of 2007, the present appeals are filed by M/s.Thayar Food Products and two others of the said Partnership concern.

6. The parties to the present litigation pending disposal of these appeals, after mutual negotiation had arrived at a settlement and it has also been reduced into writing in the form of Joint Memo of Compromise dated 06.09.2018. It is also brought to the knowledge of this Court that two writ petitions are also connected, viz., W.P.No.16746 of 2010 and W.P.No.17428 of 2012 and both the matters are also tagged along with these appeals and the above said Joint Memo of Compromise would cover these two writ petitions also.

7. The parties to the litigations are present except Thiru.Kannan S.Mahadevan and according to the learned counsel appearing for him, he is unwell and knowing the instructions he has subscribed his signatures in the said Joint Memo of Compromise, after becoming aware of the contents of the same.

8. Mr.M.Sundaram, Sole Proprietor of Thayar Dairy, T.Nagar, Chennai-17 and Mr.Ananda Krishnan, Partner of M/s.Thayar Food Products, West Mambalam, Chennai-33 are present before this Court and this Court asked a specific question as to whether they have subscribed their signatures to the Joint Memo of Compromise, after becoming aware of the contents of the same and they replied in affirmative.

9. The Joint Memo of Compromise dated 06.09.2018 is taken on file and recorded and the same shall form part of the decree in both suits.

10. In the result, O.S.A.No.238 of 2014 is disposed of and the suit in C.S.No.196 of 2007 is decreed as follows:

j. The parties mutually agree that there shall be a decree in C.S.No.196/2007 as follows:

C1(1) The defendants their agents, servants, men and everyone claiming under them be and are hereby restrained by a decree for permanent injunction from in any way infringing the plaintiffs trademark "THAYAR" bearing Registration No.1291574 (as modified) by using the offending trademark "THAAYAR" or any other trademark which is identical, or similar or deceptively similar to that of the plaintiffs reputed trademark "THAYAR" except wet batter preparations derived out of cereals and pulses only subject to Clause 3 below.

C1(2) The defendants their agents, servants, men and everyone claiming under them be and are hereby restrained by a decree for permanent injunction from in any way passing off his products as that of the plaintiff by using the offending trademark "THAAYAR" or any other trademark which is identical, or similar or deceptively similar to that of the plaintiffs reputed trademark "THAYAR" except wet batter preparations derived out of cereals and pulses only subject to Clause 3 below.

C1(3) The defendants shall be entitled to continue to manufacture and market wet batter preparations alone under the trademark "THAAYAR" such as wet idly batter, wet dosa batter, wet adai batter, wet rava dosa batter and batter derived out of cereals and pulses only under the trademark "THAAYAR".

11. In the result, O.S.A.No.239 of 2014 is disposed of and the suit in C.S.No.300 of 2007 is decreed as follows:

k. The parties mutually agree that there shall be a decree in C.S.No.300/2007 as follows:

C1(1)The defendants his agents, servants, men and everyone claiming under him be and are hereby restrained by a decree for permanent injunction from any way infringing the plaintiffs trademark "THAAYAR" bearing Registration No.1328933 (as modified) by using the offending trademark "THAYAR" or any other trademark which is identical, or similar or deceptively similar to that of the plaintiffs reputed trademark "THAAYAR" only with respect to manufacturing and marketing wet batter preparations such as wet idly batter, wet dosa batter, wet adai batter, wet rava dosa batter and batter derived out of cereals and pulses only subject to Clause 3 below.

C1(2) The defendants his agents, servants, men and everyone claiming under them be and are hereby restrained by a decree for permanent injunction from any way passing of his products as that of the plaintiffs by using the offending trademark "THAYAR" or any other trademark which is identical, or similar or deceptively similar to that of the plaintiffs reputed trademark "THAYAR" only with respect to manufacturing and marketing wet batter preparations such as wet idly batter, wet dosa batter, wet adai batter, wet rava dosa batter and batter derived out of cereals and pulses only subject to Clause 3 below.

C1(3) The defendants shall be entitled to continue to manufacture and market all other goods in the name of "THAYAR" for other than wet batter preparations such as wet idly batter, wet dosa batter, wet adai batter, wet rava dosa batter and batter derived out of cereals and pulses only in the name of the defendants trademark "THAYAR".

12. As a result of the said Joint Memo of Compromise W.P.No.16746 of 2010 is allowed and the order in O.R.A.No.117 of 2007 dated 14.09.2009 is set aside and consequently the registered trademark under No.1291574 in Class 30 with respect to description of goods by adding, ''except wet batter preparations of any description'' at the end of the description of goods, is hereby restored.

13. W.P.No.17428 of

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2012 is disposed of by directing the Registrar of Trademarks to rectify the register of trademarks relating to the registered trademark under No.1328933 in Class 30 with respect to the description of goods to read as: ''wet batter preparations such as wet idly batter, wet dosabatter, wet adaibatter, wet ravadosabatter and wet batter derived out of cereals and pulses only''. 14. It is brought to the knowledge of this Court pending disposal of the suit in C.S.No.196 of 2007, deposits have been made pursuant to the order passed by this Court and Mr.M.Sundaram, Sole Proprietor of Thayar Dairy, T.Nagar, Chennai-17, on production of this common Judgment, shall be issued with a cheque by the Registry of this Court, in respect of the amount lying to the credit of the said suit. 15. In the circumstances there shall be no order as to costs in these original side appeals as well as writ petitions. Consequently, connected miscellaneous petitions are closed.
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