Madras High CourtCS/64/2021decree in terms of memo of comprom

Hatsun Agro Product Ltd. v. M/S.Sreeja Farm

2021-03-31Honourable Mr Justice C.V. Karthikeyan14 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) WEDNESDAY, THE 31ST DAY OF MARCH, 2021 THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN C.S. No.64 of 2021 and O.A. Nos.100 & 101 of 2021 and A. No.622 of 2021 Hatsun Agro Product Ltd., having registered office at No.1/20-A, Rajiv Gandhi Salai (OMR), Karapakkam, Chennai-600 097 and also carrying on its business at Old No.AD-83/New No.AD13, Anna Nagar, Opp. IOB Towers Branch, Chennai-600 040 rep. by its Authorised Signatory ... Applicant/Plaintiff (in all the applications) -Versus1. M/s.Sreeja Farm, rep. by its Partners, No.388, Mettu Street, Ekkadu, Thiruvallur-602 021.

2. JK Foods, rep. by its Partners, No.862, Kakkalur Bypass Road, Thiruvallur-602 001.

... Respondents/Defendants (in all the applications) C.S. No.64 of 2021 Civil Suit praying that this Hon'ble Court be pleased to pass a judgment and decree:-

(a) For permanent injunction restraining the defendant by themselves, their agents, servants, distributors or any one claiming through them from using in any infringing manner the plaintiff's trademark "AROKYA" by exposing for sale or using it or copying / reproducing or causing reproduction of the same in any packaging or literature or any colourable imitation or substantial reproduction thereof in any manner whatsoever or causing infringement to the plaintiff's registered trademark as described in the Schedule to the Plaint.

(b) For permanent injunction restraining the defendants by themselves, their agents, servants, distributors or any one claiming through them in any manner whatsoever from passing off their products as that of the plaintiff's by using the offending trademark "ARUNA" which is similar, deceptively similar and identical to the plaintiff's trademark AROKYA or by using any other trademark which is similar, deceptively similar or identical to that of the plaintiff's trademark AROKYA by manufacturing or selling or offering for sale in any manner advertising the same. (c) Directing the Defendants to surrender to the Plaintiff all the products with the offending labels, stocks with offending labels together with the blocks and dies, name boards, sign boards etc. for destruction. (d) Directing the Defendants to render true and faithful accounts of the profits earned by them through the sale of the offending milk products

bearing the offending trademark labels and directing payment of such profits to the plaintiff.

(e) Directing the Defendant to pay to the plaintiff the cost of this suit.

O.A. No.100 of 2021:- Original Application praying that this Hon'ble Court be pleased to grant an order of interim injunction restraining the Respondents/Defendants by itself, its servants or agents or any one claiming through it from in any manner passing off its products as that of the Applicant/Plaintiff by using the offending trademark "ARUNA" which is identical and deceptively similar to the Applicant/Plaintiff's trademark AROKYA or by using any other trademark which is similar or identical to that of the Applicant/Plaintiff's trade mark AROKYA by manufacturing or selling or offering for sale or in any manner advertising the same pending disposal of the suit.

O.A. No.101 of 2021:- Original Application praying that this Hon'ble Court be pleased to grant an order of interim injunction restraining the Respondents/Defendants by itself, its agents, servants, distributors or any one claiming through it from using in any manner infringing the Applicant/Plaintiff's trademark AROKYA by using the trademark "ARUNA" or any other mark or marks

which are in any way identical or deceptively similar or colourable imitation of the applicant/plaintiff's registered trademarks as described in the schedule to the plaint pending disposal of the suit.

A. No.622 of 2021:- Application praying that this Hon'ble Court be pleased to appoint an Advocate Commissioner with directions to go to the premise of the Respondents/Defendants or other places where the Respondents/Defendants are storing the stocks, labels and other infringing articles, to take the inventory of the infringing goods with the offending trade mark, documents and other records related to the use of offending trade mark; seize those infringing products with the offending trademark, documents and other records related to the use of offending trade mark and deposit them before this Hon'ble court.

This Civil Suit alongwith these applications coming on this day before this court for hearing in the presence of Mr.G.Kalyan Jhabakh for M/s.Surana & Surana, Advocates for the Plaintiff in C.S.No.64 of 2021 and for the applicant in O.A.No.100, 101 of 2021 and A.No.622 of 2021 and Mr.S.C.Vishwanth, Advocate for the 1st defendant in C.S.No.64 of 2021 and for the 1st respondent in O.A.No.100, 101 of 2021 and A.No.622 of 2021 and M/s.S.Uma Maheswari, Advocate for the 2nd defendant in C.S.No.64 of 2021 and for the 2nd respondent in O.A.Nos.100 and 101 of

2021 and A.No.622 of 2021 and upon reading the order dated 29.03.2021 made in O.A.Nos.100 and 101 of 2021 and A.No.622 of 2021 and the memo of compromise signed by the plaintiff and the defendants with their respective advocates and the said advocates for the parties hereto praying this court to pass a decree in terms of memo of compromise morefully set out in the schedule hereunder, it is in term thereof ordered and decreed as follows :- That the Defendants herein acknowledge and accept the Plaintiff's rights to exclusively use the trademark AROKYA.

2. That 1. M/s.SREEJA FARM, rep. by its partners and 2.JK FOODS, rep. by its partners, the defendants herein, by themselves, their agents, servants, distributors or any one claiming through them be and are hereby restrained by an order of permanent injunction from (a) using in any infringing manner the plaintiff's trademark "AROKYA" by exposing for sale or using it or copying / reproducing or causing reproduction of the same in any packaging or literature or any colourable imitation or substantial reproduction thereof in any manner whatsoever or causing infringement to the plaintiff's registered trademark morefully set out in the schedule hereunder, and (b) in any manner whatsoever from passing off their products as that of the plaintiff's by using the offending trademark "ARUNA" which is similar, deceptively similar and identical to the

plaintiff's trademark AROKYA or by using any other trademark which is similar, deceptively similar or identical to that of the plaintiff's trademark AROKYA by manufacturing or selling or offering for sale in any manner advertising the same.

3. That the defendants herein, be and are hereby directed to the plaintiff all the products with the offending labels, stocks with offending labels together with the blocks and dies, name boards, sign boards etc. for destruction.

4. That 1. M/s.SREEJA FARM, rep. by its partners and 2.JK FOODS, rep. by its partners, the defendants herein, jointly and severally agree through themselves, their agents, servants, distributor or anyone claiming through or under them, to not infringe the Plaintiff's trademark AROKYA by using the trademark "ARUNA" or any other mark which is identical or similar to the Plaintiff's registered trademark AROKYA or any trademark which is a colorable imitation of the Plaintiff's registered trademarks AROKYA morefully set out in the schedule hereunder.

5. That the defendants herein reaffirm that by virtue of board resolution passed by the 1st Defendant in January 2020, the defendants herein, have stopped selling, marketing, distributing, etc., products under the impugned mark ARUNA and undertake that they shall not use the mark ARUNA and/or any other mark which is identical or similar to the Plaintiff's

registered trademark AROKYA as mentioned in clause (1) supra.

6. That the plaintiff given up its claims in para No.39(d) and para No.39(e) and the suit in C.S.No.64 of 2021, be and is hereby dismissed with respect to reliefs (d) and (e).

7. That these O.A.Nos.100 and 101 of 2021 and A.No.622 of 2021 do stand closed.

8. That there shall be no order as to costs of this suit. SCHEDULE Sl.

No.

Trademark Class Number Status Type of Mark AROKYA FRESH CREAMY MILK 669001 Registered Device AROKYA (label) 1402205 Registered Word AROKYA (Tamil) 1402212 Advertised Device AROKYA Milk (Malayalam) 1421080 Registered Word AROKYA Milk (Telugu) 1421081 Registered Word AROKYA Milk 1421082 Registered Word AROKYA 2469516 Registered Word AROKYA 2574529 Registered Device AROKYA Milk 2791526 Registered Device AROKYA Milk 2791527 Registered Device AROKYA Milk 2791528 Registered Device AROKYA Milk 2791529 Registered Device AROKYA 2871351 Registered Device AROKYA CURD 3989206 Pending Device AROKYA CURD 3989207 Pending Device AROKYA CURD 3989208 Pending Device AROKYA CURD 3989209 Registered Device AROKYA DOUBLE TONED MILK 4026601 Pending Device AROKYA TONED MILK 4026602 Pending Device AROKYA STANDARDISED MILK 4026603 Pending Device

Sl.

No.

Trademark Class Number Status Type of Mark AROKYA FULL CREAM MILK 4026604 Pending Device AROKYA 2467714 Registered Word AROKYA 2574530 Pending Device AROKYA 2871352 Pending Device AROKYA 2467715 Registered Word AROKYA 2574531 Registered Device AROKYA 2871353 Registered Device AROKYA 1402206 Registered Word AROKYA 1402211 Registered Word AROKYA 2467716 Registered Word AROKYA 2574532 Registered Device AROKYA 2871354 Registered Device MEMO OF COMPROMISE

NK-16/04/2021 C.S. No.64 of 2021 and O.A. Nos.100 & 101 of 2021 and A. No.622 of 2021 DECREE DATED : 31.03.2021 THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN FOR APPROVAL: 20.07.2021 APPROVED ON: 22.07.2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 31.03.2021

CORAM:

THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN C.S.No.64 of 2021 and O.A.Nos.100, 101 of 2021 and A.No.622 of 2021 Hatsun Agro Product Ltd., Having registered Office at No.1/20-A, Rajiv Gandhi Salai (OMR) Karapakkam, Chennai - 600 097.

And also carrying on its business at Old No.AD-83/New No.AD13, Anna Nagar, Opp.: IOB Towers Branch, Chennai - 600 040.

Represented by its Authorized Signatory Mr.P.Sivasakthivel ... Plaintiff ..Vs..

1.M/s.Sreeja Farm, Represented by its partners, No.388, Mettu Street, Ekkadu, Thiruvallur - 602 021.

2.JK Foods, Represented by its partners, No.862, Kakkalur Bypass Road, Thiruvallur - 602 001.

... Defendants PRAYER : Plaint filed under Order VII Rule 1 CPC read with Order IV Rule 1 of High Court O.S.Rules and Sections 134 and 135 of the Trademarks Act, 1999 and Section 7 of the Commercial Courts Act, 2015, prayed for a Judgment and Decree:-

(d) Directing the Defendants to render true and faithful accounts of the profits earned by them through the sale of the offending milk products bearing the offending trademark labels and directing payment of such profits to the plaintiff.

(e) For costs of this suit.

For Plaintiff : M/s.G.Kalyan Jhabakh For Defendants : M/s.S.C.Vishwanth for D1 M/s.S.Uma Maheswari for D2 *********

J U D G M E N T

A Memo of Compromise dated 25.03.2021 signed by the Authorized Signatory of the plaintiff and by the Proprietor of the first defendant and also by the Proprietor of the second defendant had been filed in Court on 29.03.2021. It has also been signed by the learned counsel for the plaintiff and by the learned counsels for the first and second defendants.

2. In the Memo of Compromise the defendants had agreed not to infringe the plaintiff's Trademarks AROKYA by using the Trademark ARUNA or any other mark which is identical or which is similar to the registered Trademark of the plaintiff, AROKYA or any other Trademark which is a colourable replication of the plaintiff's registered Trademark.

3. The list of Trademarks the plaintiff has registered had also been given in the Compromise memo. The defendants have also stated that by virtue of a Board Resolution passed by the first defendant in January 2020, the defendants have stopped selling or marketing or even distributing any product with the mark ARUNA and they have also undertaken not to use the mark ARUNA to the detriment of the interests of the plaintiff.

4. The suit is partly decreed in terms of the Memo of Compromise with respect to the reliefs (a), (b) and (c) and dismissed with respect to reliefs (d) and (e). The Memo of Compromise dated 25.03.2021 shall form part of the Decree. No order as to costs. Connected Applications are closed.

Sd./-C.V.K.J.

31/03/2021 // Certified to be true copy// Dated at Madras this day of 2021. Court Officer(O.S.) From 25th day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.

WITNESS THE HON'BLE MR.JUSTICE SANJIB BANERJEE, CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID THIS THE 9th DAY OF APRIL, 2021. ASSISTANT REGISTRAR (O.S.I)