Partly allowed

A.D.Padmasingh Isaac v. a. Shakul Hameed

Madras HC9 Aug 2019CS/244/2019

Case brief

AI extract

What is this about?

The Civil Court partly decreed a trademark infringement suit where defendants provided an undertaking not to use their abandoned trademark after company dissolution, settling the dispute on permanent injunctions regarding get-up and word mark.

What did the court decide?

Permanent injunction restraining the defendant from using the plaintiff's trademark 'AACHI' or similar marks in relation to masala items.

A.D.Padmasingh Isaac Vs a. Shakul Hameed — Intellectual Property | Madras HC (2019)

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C.S.No.244 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 09.08.2019

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Coram

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The Honourable Mr.Justice KRISHNAN RAMASAMY

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C.S.No.244 of 2019

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and O.A.Nos.373 & 374 of 2019

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1.Mr.A.D.Padmasingh Isaac
Trading as Aachi Spices and Foods
Old No.4, New No.181/1,
6 th Avenue, Thangam Colony,
Anna Nagar,
Chennai – 600 040.
2.M/s.Aachi Masala Foods (P) Ltd.,
Old No.4, New No.181/1,
6 th Avenue, Thangam Colony,
Anna Nagar,
Chennai – 600 040
Represented by its Director,
Mr.Ashwin Pandian
...Plaintiffs
Versus
A.Shakul Hameed
Trading as Ashick Food Products,
No.50/60, Arignar Anna Street,
Villupuram – 605 602,
Tamilnadu.

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...Defendant

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This suit is filed under Order IV Rule 1 of the Original Side Rules and Order VII Rule 1 of the C.P.C r/w. Sections 27(2), 29, 134 and 135 of the Trademarks Act, 1999 for the following reliefs:

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C.S.No.244 of 2019

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(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 same or similar get up, and colour scheme used by the defendant shown in Document No.2 or the word mark AUNTI'S any other similar Trademark or in any media and use the same in any goods, invoices, letter heads and visiting cards or by using any other Trademark which is in any way visually or deceptively or phonetically similar to the plaintiff's trademark “AACHI MASALA KULAMBU CHILLY POWDER” label as shown in Document No.1 or AACHI 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 any way visually, and deceptively similar to the plaintiffs' registered Trademark No.1318495 & 838786 or in any manner infringe the plaintiffs' registered Trademark;

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(b) 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 same or similar get up, and colour scheme used by the defendant shown in Document No.2 or the word mark AUNTI'S 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 or deceptively or phonetically similar to the plaintiff's trademark “AACHI MASALA

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C.S.No.244 of 2019

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KULAMBU CHILLY POWDER” label as shown in Document No.1 or AACHI 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, and deceptively similar to the plaintiffs' Trademarks “AACHI MASALA KULAMBU CHILLY POWDER” as shown in Document No.1 or AACHI in any manner pass off the plaintiffs' goods;

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(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 AUNTI'S and packets in the Color Scheme and Get up as shown in Document No.2 or other deceptively similar trademark used in the pouches and packets in respect of masalas;

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(d) directing the defendant to render an account of profits made by them by the use of the impugned Trademark AUNTI'S 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;

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(e) directing the defendant to pay to the plaintiffs the costs to the suit.

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For Plaintiffs : Ms.Gladys Daniel

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For Defendant : Mr.D.Senthil Kumar

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C.S.No.244 of 2019

J U D G M E N T

The learned counsel appearing for the defendant submitted that the Trademark of the defendant's Company viz., “AUNTI'S FOR TASTY MASALA” was declared “ABANDONED” by the Trademarks Registry vide order dated 22.05.2019 and therefore, the defendant undertook that he will not make use of the said abandoned

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Trademark anymore for any purposes in future. He has also filed an Affidavit which was duly signed by the defendant.

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2. The said Affidavit reads as follows:

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“1. I humbly submit that and wishes to place on record before this Hon'ble Court, that the Company business ran into rough weather and ultimately my Company was dissolved and became devoid of its operationality from the year 2018.

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2. I humbly submit that my Company's Trademark “AUNTI'S FOR TASTY MASALA” was declared “ABANDONED” by the Hon'ble Trade Marks Registry, at Chennai by its Order dated 22.05.2019, when an objection was raised by the plaintiffs against to me in Hon'ble Trademark Registry, Chennai. I humbly submit that from the year 2018, my Company is kaput and non-existing. I humbly submit that he nor his derivatives uses their Trademark anymore.

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3. I humbly submit that while shutting down his

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C.S.No.244 of 2019

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Company's operations, I has disposed of all the Labels and other food packaging covers that has the imprint of my Trademark “AUNTI'S FOR TASTY MASALA”, except for a few labels, and food packaging covers, for his keep sake.

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4. I humbly submit that the above situation, for the sake of brevity, I submit by way of filing this affidavit before this Hon'ble Court, gives my undertaking that at present nor in future, I will not make use of his abandoned Trademark for any purposes.

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5. I humbly submits that the elucidation and as the proof of the above contained I request this Hon'ble Court to treat the Typed set of documents filed on 05.07.2019 and memo as part and parcel of this affidavit.

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I therefore most humbly prays that this Court may be pleased to take the present Affidavit on file and pass appropriate orders and thus render justice without any costs.”

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The learned counsel for plaintiffs submitted that having

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been convinced with the statement of undertaking made by the defendant in the said Affidavit, the plaintiffs are not pressing the

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prayer (c) & (d) and they are ready to give up the same. She has also made an endorsement to that effect. She therefore prayed that the suit may be party decreed in respect of the prayer (a) & (b) and she further prayed that the aforesaid Affidavit filed by the defendant's counsel may be recorded by this Court.

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C.S.No.244 of 2019

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KRISHNAN RAMASAMY, J., mrr

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The above Affidavit is recorded and the same shall form
part of the decree.
5. Considering the submission and also the endorsement
made by the plaintiffs' counsel, this Court is inclined to partly decree
the present suit in respect of prayer (a) & (b). Accordingly, this Civil
Suit is partly decreed as stated above. No costs. Consequently,
connected Applications are closed.
09.08.2019
mrr
Index : Yes/No
C.S.No.244 of 2019

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A.D.Padmasingh Isaac v. a. Shakul Hameed

Case brief

What is this about?

What did the court decide?

A.D.Padmasingh Isaac v. a. Shakul Hameed

Case brief

What is this about?

What did the court decide?

What the court decided

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