Dismissed

Mr. A.D. Padmasingh Isaac v. M/ Dharmender Trading

Madras HC4 Aug 2021CS/1140/2007

Case brief

AI extract

What is this about?

This suit for trademark infringement was decided ex parte. The court found the defendant's product packaging, colour scheme, and get-up deceptively identical to the plaintiff's registered trade mark 'AACHI'. The court applied the test from Parley Products and granted relief for permanent injunction and accounting of profits.

What did the court decide?

Plaintiffs granted permanent injunction, direction to surrender materials, and order to render account of profits.

Mr. A.D. Padmasingh Isaac Vs M/ Dharmender Trading — Intellectual Property | Madras HC (2021)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

(ORDINARY ORIGINAL CIVIL JURISDICTION)

¶4

WEDNESDAY, THE 04TH DAY OF AUGUST 2021

¶5

THE HON'BLE MR. JUSTICE R.SUBRAMANIAN

¶6

C.S. No.1140 of 2007

¶7

A.D.Padmasingh Isaac

¶8

Trading as Aachi Spices and Foods, Old No.4, New No.181/1,

¶9

6^th Avenue,, Thangam Colony, Anna Nagar, Chennai 600 040.

¶10

M/s. Aachi Masala Foods (P) Ltd., No.6, Ground Floor, 15^th Street, Anna Nagar, 'G' Block, Chennai 600 040. Rep by its Director Mr.Ashwin Pandian

¶11

... Plaintiffs

¶12

Versus

¶13

M/s. Samy Traders, Periya Kattu Palayam Cuddalore Taluk 607 001

¶14

... Defendant

¶15

C.S.No. 1140 of 2007

¶16

Civil Suit praying that this Hon'ble Court be pleased to grant a

¶17

Judgement and Decree on the following terms:

¶18

a) Granting a permanent injunction, restraining the defendant by itself,

¶19

its servants, agents, distributors, or anyone claiming through him

¶20

https://hcservices.ecourts.gov.in/hcservices/

¶21

from manufacturing, selling, advertising and offering for sale using

¶22

¶23

same or similar get up, and colour scheme used by the defendants shown in Document No.2 and trade mark AACHI or any other visually similar Trade Mark 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' trade mark AACHI MASALA KULAMBU CHILLY POWER as shown in Document No.1 or in relation to any masala items and use the same pouches, packets or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other trade mark which is in any way visually, or phonetically similar to the plaintiffs' registered Trade Mark Nos.922594, 922595, 1318494 & 1318495 or in any manner infringe the plaintiff's registered Trade Mark;

¶24

b) Directing the defendant to surrender to the plaintiffs all the packing materials, cartons, advertisement materials and hoardings, letterheads, visiting cards, office stationery and all other materials containing/bearing 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;

¶25

c) directing the defendant to render an account of profits made by them

¶26

https://hcservices.ecourts.gov.in/hcservices/

¶27

by the use of the impugned trademark and get up as shown in

¶28

¶29

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;

¶30

d) directing the defendant to pay to the plaintiffs the costs to the suit.

¶31

This suit coming on this day before this court for hearing in the presence of Ms.Gladys Daniel, Advocate for the Plaintiffs herein and the defendant herein, not appearing in person or by advocate and the said defendant herein having been set exparte and upon reading the plaint filed herein and the other exhibits therein referred to and upon perusing the evidence adduced therein and this court having observed that the plaintiff as a registered proprietor of the trade mark they are entitled to the reliefs sought for in suit, it is ordered and decreed as follows:-

¶32

That M/s. Samy Traders, Periya Kattu Palayam, the defendant herein, by itself, its servant, agent, distributors, or anyone claiming through him, be and is hereby restrained by an order of permanent injunction from manufacturing, selling, advertising and offering for sale using same or similar get up, and colour scheme used by the defendants shown in Document No.2 and trade mark AACHI or any other visually similar Trade

¶33

Mark or in any media and use the same in invoices, letter heads and visiting

¶34

https://hcservices.ecourts.gov.in/hcservices/

¶35

cards or by using any other trade mark which is in any way visually or

¶36

¶37

deceptively or phonetically similar to the plaintiffs' trade mark AACHI

¶38

MASALA KULAMBU CHILLY POWER as shown in Document No.1 or in relation to any masala items and use the same pouches, packets or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other trade mark which is in any way visually, or phonetically similar to the plaintiffs' registered Trade Mark Nos.922594, 922595, 1318494 & 1318495 or in any manner infringe the plaintiff's registered Trade Mark.

¶39

That the defendant herein be and is hereby directed to surrender to the plaintiffs all the packing materials, cartons, advertisement materials and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing 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.

¶40

That the defendant herein be and is hereby directed 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.

¶41

https://hcservices.ecourts.gov.in/hcservices/

¶42

¶43

That the defendant herein, do pay to the plaintiff herein, the

¶44

costs of this suit as and when taxed by the taxing officer of this court and

¶45

noted in the margin thereof.

¶46

WITNESS, THE HON'BLE MR.JUSTICE SANJIB BANERJEE, CHIEF JUSTICE, HIGH COURT OF MADRAS AFORESAID, THIS THE 04TH DAY OF AUGUST 2021.

¶47

Sd/-

¶48

ASSISTANT REGISTRAR (Comm. Cases)

¶49

//Certified to be true copy// Dated at Madras this the day of 2021.

¶50

COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.

¶51

https://hcservices.ecourts.gov.in/hcservices/

NS 17.08.2021

C.S.No. 1140 of 2007

DECREE

DATED 04/08/2021

THE HON'BLE MR.JUSTICE R.SUBRAMANIAN

¶58

FOR APPROVAL: 21/09/2021

¶59

APPROVED ON: 22/09/2021

¶60

https://hcservices.ecourts.gov.in/hcservices/

¶61

¶62

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶63

DATED : 04.08.2021

¶64

CORAM

¶65

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

¶66

C.S.No.1140 of 2007

¶67

A.D.Padmasingh Isaac Trading as Aachi Spices and Foods, Old No.4, New No.181/1,

¶68

6^th Avenue,, Thangam Colony, Anna Nagar, Chennai 600 040.

¶69

M/s. Aachi Masala Foods (P) Ltd., No.6, Ground Floor, 15^th Street, Anna Nagar, 'G' Block, Chennai 600 040. Rep by its Director Mr.Ashwin Pandian

¶70

... Plaintiffs

¶71

Versus

¶72

M/s. Samy Traders, Periya Kattu Palayam Cuddalore Taluk 607 001 ... Defendant

¶73

Plaint filed under Order IV Rule 1 of the Original Side Rules and Order VII, Rule 1 of the Code Civil Procedure read with Sections 27(2), 29, 134 and 135 of the Trade Marks Act, 1999, praying to pass a judgment and decree:-

¶74

e) Granting a permanent injunction, restraining the defendant by itself, its servants, agents, distributors, or anyone claiming through him from manufacturing, selling, https://hcservices.ecourts.gov.in/hcservices/ advertising and offering for sale using same or similar get up, and colour scheme used by the defendants shown in

¶75

¶76

Document No.2 and trade mark AACHI or any other visually similar Trade Mark 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' trade mark AACHI MASALA KULAMBU CHILLY POWER as shown in Document No.1 or in relation to any masala items and use the same pouches, packets or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other trade mark which is in any way visually, or phonetically similar to the plaintiffs' registered Trade Mark Nos.922594, 922595, 1318494 & 1318495 or in any manner infringe the plaintiff's registered Trade Mark;

¶77

f) Directing the defendant to surrender to the plaintiffs all the packing materials, cartons, advertisement materials and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing 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;

¶78

g) 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;

¶79

https://hcservices.ecourts.gov.in/hcservices/ h) directing the defendant to pay to the plaintiffs the costs to the suit.

¶80

9 For Plaintiffs : Ms.Gladys Daniel For Defendant : set exparte

¶81

J U D G M E N T

¶82

The suit is one for infringement of a trademark of the plaintiffs.

¶83

The plaintiffs claim to be a manufacturer of various food products. One such product is the Kulambu Chilly Masala marketed by the plaintiffs with a Trademark AACHI and packed in sachets having a particular representation of the product. The plaintiffs claim to be in the trade from the year 1999 and this particular product has been registered on 01.11.2004 under Class 30 with Registration No.1318495. It is also the further claim of the plaintiffs that the products of the plaintiffs are well known and the plaintiffs have established a reputation for such Masala products. Contending that the defendant is selling a similar product named Kulambu Chilly Power with a trademark ASS products, packed in a sachet which is almost identical to the sachet of the plaintiffs.

¶84

The plaintiffs would point out that the defendant has used the same colour scheme, get up and the ingredients in its sachet which undoubtedly makes the sachet of the defendant identical to that of the plaintiffs. The plaintiffs seek a decree for permanent injunction restraining

¶85

the defendant from infringing its trademark 'Aachi Masala Kulambu Chilly https://hcservices.ecourts.gov.in/hcservices/ Powder’ packed with a specific colour scheme containing predominantly

¶86

¶87

green, yellow and red colours and also restraining the defendant from using

¶88

any trade literature or trademark which is visually or phonetically similar to

¶89

the plaintiffs’ registered trademark. A prayer for surrender of the packing materials, cartons, advertisement materials etc. has also been made apart from a prayer for accounting.

¶90

Despite service, the defendant did not choose to appear, the defendant was set ex-parte . The plaintiffs have let in evidence before the learned Master and also produced the documents.

¶91

One Mr.B.Gnanasambandam, was examined as P.W.1 and he has filed his proof affidavit reiterating the averments made in the plaint. Documents have also been produced by the plaintiffs to show that the plaintiffs have obtained a registration for the trademark ‘Aachi’ and the label which has been produced as Ex.P3. Ex.P4 is the Legal User Certificate for the trademark 'Aachi Kulambu Chilly Masala' and the label containing a specific colour scheme. The sachet of the defendant has been produced as Ex.P15. The cease and desist notice issued by the plaintiffs' predecessor has been produced as Ex.P13 and the reply has been produced as Ex.P14.

¶92

A perusal of the documents coupled with the oral evidence of D.W.1 would show that there is a very clear attempt of deception on the part

¶93

of the defendant. Though the defendant is marketing the product namely

¶94

https://hcservices.ecourts.gov.in/hcservices/

¶95

‘Kulambu Chilly Power’ under the brand name of ASS Products, the colour

¶96

¶97

scheme and get up of the sachet or the packing is deceptively similar to that

¶98

of the plaintiffs’ colour scheme and packing. Both the labels have got green

¶99

background and yellow and red colours are used predominantly. The representation of the spices arranged in a white china clay plate with green design on the edge has been substantially reproduced in the sachet of the defendant. A comparative look at both these sachets would clearly show that the defendant has made an attempt to pass of its products as that of the plaintiffs. If we are to apply the test enunciated in Parley Products (P) Ltd v. J.P. & Co., Mysore, reported in AIR 1972 SC 1359 , I am sure that a consumer who is a person with average intelligence and imperfect recollection would definitely be deceived into purchasing the defendant's product as that of the plaintiffs.

¶100

6. I am therefore of the considered opinion that the plaintiffs as a

¶101

registered proprietor of the trade mark they are entitled to the reliefs sought for in the suit. The suit is therefore decreed as prayed for with costs.

¶102

Sd/- R.S.M.J. 04/08/2021

¶103

https://hcservices.ecourts.gov.in/hcservices/

¶104

¶105

List of the witnesses examined on the side of the plaintiffs :

¶106

P.W.1 Mr.B.Gnanasambandam

¶107

List of Exhibits marked on the side of the plaintiffs:

¶108

_S. No. _	*Exhibits*	*Description of Documents*
1	Ex.P1	Original Authorization letters
2	Ex.P2	Certified copy of plaintiffs advertisement in RITZ Magazine
3	Ex.P3	Original plaintiffs' label AACHI Kulambu Chilly Masala
4	Ex.P4	Photocopy of the Registration Certificate of Trade Mark No.1318495 and Legal uese Certificate dated 02.04.2007
5	Ex.P5	Photocopy of the Registration Certificate of Trade Mark No.922595 dated 10.01.2004
6	Ex.P6	Photocopy of the Registration Certificate of Trade Mark No.922594 dated 26.07.2005
7	Ex.P7	Photocopy of the legal use certificate of Trade Mark No.922595 dated 10.02.2006
8	Ex.P8	photocopy of the Registration Certificate of Trade Mark No.1357284, dated 26.10.2006
9	Ex.P9	Photocopy of the certificate of Incorporation of nazareth Foods Private Limted dated 23..07.2001
10	Ex.P10	Photocopy of the Certificate of Commercial Tax Registration of Aachi Masala & Foods (P) Ltd., dated 10.07.2006
11	Ex.P11	(Series 2 nos.) are the photocopies of the Certificate of Commercial Tax Registration and Central Sales Tax of Aachi Spices & Foods dated 28.12.2006 and 03.01.2007
12 https://hcservices.ecourts.gov.in/h	Ex.P12 cservices/	(Series 2 nos.) are the photocopies of the Certificate of Commercial Tax Registration and Central Sales Tax

¶109

¶110

S. No.

¶111

_S. No. _	*Exhibits*	*Description of Documents*
		of Aachi Spices & Foods dated 28.12.2006 and 03.01.2007
13	Ex.P13	(Series 2 nos.) are the photocopies of the Certificate of Commercial Tax Registration and Central Sales Tax of Aachi Spices & Foods dated 28.12.2006 and 03.01.2007
14	Ex.P14	Original defendant’s reply to the cease and desist notice dated 02.05.2005
15	Ex.P15	Original defendant’s label “ASS”

¶112

List of the witnesses examined on the side of the defendants: Nil.

¶113

List of Exhibits marked on the side of the defendants: Nil.

¶114

Sd/- R.S.M.J. 04/08/2021

¶115

//Certified to be true copy// Dated at Madras this the day of 2021.

¶116

COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.

¶117

https://hcservices.ecourts.gov.in/hcservices/

Mr. A.D. Padmasingh Isaac v. M/ Dharmender Trading

Case brief

What is this about?

What did the court decide?

Mr. A.D. Padmasingh Isaac v. M/ Dharmender Trading

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr.Umang Sodagar Vs Five Star Marine Exports P.Ltd

Sun Pharmaceutical Industries Vs Nirma Ltd., and Another

Sun Tv Network Vs M/S.Viswak Movies and 3 Others

M/s.East Coast Constructions Vs M/s.Sri Balaji Educational

Mr. Mukesh Jain Vs Mr S.S. Chakravarthy

M/s.Thalappakatti Hotels Pvt. Vs Hotel Noor Thalapakatti