Madras High CourtA/1139/2021closed

M/S Tvs Credit Services Limited v. Mr.Ram Jivan

2021-07-02Honourable Mr Justice N. Sathish Kumar17 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 04TH DAY OF FEBRUARY 2022 THE HON'BLE MR. JUSTICE N.ANAND VENKATESH C.S.(Comm.Div.) No.62 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.AD 13, Anna Nagar, Opp.:IOB Towers Branch, Chennai - 600 040.

Represented by its Authorized Signatory.

... Plaintiff -VersusMr.Shiva Kumar, Sole Proprietor of M/s Sri Arokya Wood Pressed Oils & Cakes, No.23- H, Balathandayutham Nagar, Nadupalayam Pirivu, Kannampalayam, Coimbatore - 641 402.

... Defendant Civil Suit praying that this Hon'ble Court be pleased to pass a judgment and decree:

A. For a permanent injunction restraining the defendant, by himself, his heirs, legal representatives, successors-in- business, agents, servants, distributors or any one claiming through him from in any manner infringing the plaintiff's registered trademark AROKYA by using the mark SRI AROKYA or any other deceptively similar mark in any manner whatsoever causing infringement to the plaintiff's registered trademark as

described in the schedule to the plaint;

b) For a permanent injunction restraining the defendant, by himself, his heirs, legal representatives, successors-in-business, agents, servants, distributors or any one claiming through him in any manner whatsoever from passing off and enabling others to pass off the defendant's business as that of the plaintiff's by using the mark SRI AROKYA or any other mark which is deceptively similar or identical to the plaintiff's trademark AROKYA in any manner whatsoever;

c) Directing the defendant to surrender to the plaintiff all the products and stocks with the offending labels, together with the blocks, dies, name boards, sign boards, etc., for destruction;

d) Directing the defendant to render a true and faithful account of the profits earned by him through the sale of the products bearing the offending trademark label and directing payment of such profits to the plaintiff; e) Directing the defendant to pay to the plaintiff a sum of Rs.1,00,000/- as damages for committing acts of infringement of trademark and passing off;

This suit coming on this day before this court for hearing in the presence of Mr.Prashant Ali for M/s Surana and Surana, Advocates for the Plaintiff herein, and Mr.B.K.Dhyana, Advocate for the defendant herein, and upon reading the plaint filed herein, and the memo of compromise

signed by the plaintiff and the defendant herein, and their respective advocates, and the said advocates for the parties hereto praying this court to pass a decree interms of memo of compromise morefully setout in the schedule hereunder, it is interms thereof ordered and decreed as follows:- That the defendant herein, acknowledges and accepts the plaintiff's rights to exclusively use the trademark AROKYA.

2. That Mr.Shiva Kumar, Sole Proprietor of M/s Sri Arokya Wood Pressed oils and cakes, the defendant herein, by himself, his heirs legal representatives, successors-in-business, agents, servants, distributors or anyone claiming through him (a) from in any manner infringing the plaintiff's registered trademark AROKYA by using the mark SRI AROKYA or any other deceptively similar mark in any manner whatsoever causing infringement to the plaintiff's registered trademark morefully setout in the schedule hereunder and (b) in any manner whatsoever from passing off and enabling others to pass off the defendant's business as that of the plaintiff's by using the mark SRI AROKYA or any other mark which in deceptively similar or identical to the plaintiff's trademark AROKYA in any manner whatsoever.

3. That the plaintiff herein gives up its claims in paragraph No.37(C), paragraph No.37(D) and paragraph No.37(E) contingent to the defendant

herein complying with the terms of this Memo of Compromise.

4. That the defendant herein submits he is no longer in use of the infringing mark SRI AROKYA.

5. That the defendant herein further undertakes to not infringe the plaintiff's mark AROKYA or any other brand of the plaintiff's in the future.

6. That the defendant herein also undertakes to not violate any of the other brands of the plaintiff in the future including "ARUN", "HATSUN", "IBACO", "HATSUN DAIRY INGREDIENTS", "SANTOSA", "HATSUN DAIRY", "OYALO", etc.

7. That the defendant herein undertakes to not market or manufacture any product/service of his by using a mark which is identical or similar to any of the plaintiff's brands.

8. That the defendant herein agrees to not infringe the plaintiff's trademark AROKYA by using the trademark "SRI AROKYA" 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 as detailed below:- S.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 1421080 Registered Word

S.No Trademark Class Number Status Type of Mark (Malayalam) 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 AROKYA FULL CREAM MILK 4026604 Pending Device GOODNESS OF AROKYA 2639930 Registered Word GOODNESS OF AROKYA 2639938 Registered Device AROKYA PANEER 5001067 Pending Device AROKYA PANEER MADE NATURALLY WITH LEMON 5001068 Pending Device AROKYA GHEE 5077442 Pending Device AROKYA GHEE 5077443 Pending Device AROKYA 2467714 Registered Word AROKYA 2574530 Pending Device

S.No Trademark Class Number Status Type of Mark AROKYA 2871352 Pending Device TEA SHOP SPECIAL AROKYA MILK 2630077 Registered Device GOODNESS OF AROKYA 2639931 Registered Word GOODNESS OF AROKYA 2639939 Registered Device AROKYA 2467715 Registered Word AROKYA 2574531 Registered Device AROKYA 2871353 Registered Device GOODNESS OF AROKYA 2639932 Registered Word GOODNESS OF AROKYA 2639940 Registered Device AROKYA 1402206 Registered Word AROKYA 1402211 Registered Word AROKYA 2467716 Registered Word AROKYA 2574532 Registered Device AROKYA 2871354 Registered Device TEA SHOP SPECIAL AROKYA MILK 2630082 Registered Device GOODNESS OF AROKYA 2639933 Registered Word GOODNESS OF AROKYA 2639941 Registered Device

9. That the defendant herein further agrees to not infringe the plaintiff's trademark AROKYA by using the trade/business name "M/s Sri Arokya Wood Pressed Oils & Cakes" and shall use a different trade/business name for his business which is not identical or similar to the plaintiff's registered trademark.

10. That the defendant herein shall not attempt to register any

trademark containing the plaintiff's trademark "AROKYA" or any trademark which is identical or similar to the plaintiff's trademark AROKYA or any trademark which is a colourable imitation of the plaintiff's registered trademark in any class for any of its products/services.

11. That the connected applications do stand closed, if any.

12. That there shall be no order as to costs. Schedule S.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 4026601 Pending Device

S.No Trademark Class Number Status Type of Mark TONED MILK AROKYA TONED MILK 4026602 Pending Device AROKYA STANDARDISED MILK 4026603 Pending Device AROKYA FULL CREAM MILK 4026604 Pending Device GOODNESS OF AROKYA 2639930 Registered Word GOODNESS OF AROKYA 2639938 Registered Device AROKYA PANEER 5001067 Pending Device AROKYA PANEER MADE NATURALLY WITH LEMON 5001068 Pending Device AROKYA GHEE 5077442 Pending Device AROKYA GHEE 5077443 Pending Device AROKYA 2467714 Registered Word AROKYA 2574530 Pending Device AROKYA 2871352 Pending Device TEA SHOP SPECIAL AROKYA MILK 2630077 Registered Device GOODNESS OF AROKYA 2639931 Registered Word GOODNESS OF AROKYA 2639939 Registered Device AROKYA 2467715 Registered Word AROKYA 2574531 Registered Device AROKYA 2871353 Registered Device GOODNESS OF AROKYA 2639932 Registered Word GOODNESS OF AROKYA 2639940 Registered Device AROKYA 1402206 Registered Word AROKYA 1402211 Registered Word AROKYA 2467716 Registered Word

S.No Trademark Class Number Status Type of Mark AROKYA 2574532 Registered Device AROKYA 2871354 Registered Device TEA SHOP SPECIAL AROKYA MILK 2630082 Registered Device GOODNESS OF AROKYA 2639933 Registered Word GOODNESS OF AROKYA 2639941 Registered Device Memo of Compromise

MU 13.04.2022 C.S.(Comm.Div.) No.62 of 2021 ORDER :- DATED : 04.02.2022 THE HON'BLE MR.JUSTICE N.ANAND VENKATESH FOR APPROVAL: 19.04.2022 APPROVED ON: 20.04.2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 04.02.2022 Coram:

THE HONOURABLE MR JUSTICE N.ANAND VEKATESH Civil Suit (Comm.Div) No.62 of 2021 Hatsun Agro Product Ltd., Having registered Office at No.//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.

.. Plaintiff .vs.

Mr.Shiva Kumar, Sole Proprietor of M/s.Sri Arokya Wook Pressed Oils & Cakes, No.23-H, Balathandayutham Nagar, Nadupalayam Pirivu, Kannampalayam, Coimbatore 641 402.

..Defendant Prayer: Civil Suit has been filed under Order VII Rule 1 CPC read with Order IV Rule I of High Court O.S.Rules and Section 134 and 135 of the Trademarks Act, 1999, and Section 7 of the Commercial Courts Act, 2015 pleased to grant a judgment and decree on the following terms:- a) For a permanent injunction restraining the defendant, by himself, his heirs, legal representatives, successors-in- business, agents, servants, distributors or any one claiming through him from in any manner infringing

the plaintiff's registered trademark AROKYA by using the mark SRI AROKYA or any other deceptively similar mark in any manner whatsoever causing infringement to the plaintiff's registered trademark as described in the schedule to the plaint;

c) Directing the defendant to surrender to the plaintiff all the products and stocks with the offending labels, together with the blocks, dies, name boards, sign boards, etc., for destruction;

For Plaintiff :

Mr.Prashant Ali for M/s.Surana & Surana For Defendant :

Ms.B.K.Dhyana -----

J U D G M E N T

The present suit was filed by the plaintiff with a grievance that the registered trademark of the plaintiff was infringed by the defendant and accordingly, various reliefs were sought for by the plaintiff.

2. During the pendency of the suit, the parties were able to arrive at a settlement and the same has been reduced to writing by way of a memorandum of compromise. The memorandum of compromise has been signed by both the parties and by their respective counsel.

3. The relevant portions of the memorandum of compromise are extracted hereunder:

'1. The defendant acknowledges and accepts the plaintiff's rights to exclusively use the trademark AROKYA and the suit may be decreed as prayed for in paragraph No.37(A) and paragraph No.37(B) of the plaint.

2. The plaintiff gives up its claims in paragraph No.37(C), paragraph No.37(D) & paragraph No.37(E) contingent to the defendant complying with the terms of this memo of compromise.

3. The defendant submits he is no longer in use of the infringing

mark SRI AROKYA. The defendant further undertakes to not infringe the plaintiff's mark AROKYA or any other brand of the plaintiff's in the future. The defendant also undertakes to not violate any of the other brands of the plaintiff in the future including "ARUN", "HATSUN", "IBACO", "HATSUN DAIRY INGREDIENTS", "SANTOSA", "HATSUN DAIRY", "OYALO" , etc. The defendant undertakes to not market or manufacture any product/service of his by using a mark which is identical or similar to any of the plaintiff's brands.

4. The defendant agrees to not infringe the plaintiff's trademark AROKYA by using the trademark "SRI AROKYA" 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 as detailed below:- S.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

S.No Trademark Class Number Status Type of Mark 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 AROKYA FULL CREAM MILK 4026604 Pending Device GOODNESS OF AROKYA 2639930 Registered Word GOODNESS OF AROKYA 2639938 Registered Device AROKYA PANEER 5001067 Pending Device AROKYA PANEER MADE NATURALLY WITH LEMON 5001068 Pending Device AROKYA GHEE 5077442 Pending Device AROKYA GHEE 5077443 Pending Device AROKYA 2467714 Registered Word AROKYA 2574530 Pending Device AROKYA 2871352 Pending Device TEA SHOP SPECIAL AROKYA MILK 2630077 Registered Device GOODNESS OF AROKYA 2639931 Registered Word GOODNESS OF AROKYA 2639939 Registered Device AROKYA 2467715 Registered Word AROKYA 2574531 Registered Device AROKYA 2871353 Registered Device GOODNESS OF AROKYA 2639932 Registered Word GOODNESS OF 2639940 Registered Device

S.No Trademark Class Number Status Type of Mark AROKYA AROKYA 1402206 Registered Word AROKYA 1402211 Registered Word AROKYA 2467716 Registered Word AROKYA 2574532 Registered Device AROKYA 2871354 Registered Device TEA SHOP SPECIAL AROKYA MILK 2630082 Registered Device GOODNESS OF AROKYA 2639933 Registered Word GOODNESS OF AROKYA 2639941 Registered Device

5. The Defendant further agrees to not infringe the plaintiff's trademark AROKYA by using the trade/business name "M/s.Sri Arokya Wood Pressed Oils & Cakes" and shall use a different trade/business name for his business which is not identical or similar to the plaintiff's registered trademark.

6. The Defendant will not attempt to register any trademark containing the plaintiff's trademark "AROKYA" or any trademark which is identical or similar to the plaintiff's trademark AROKYA or any trademark which is a colourable imitation of the plaintiff's registered trademark in any Class for any of its products/services.

7. The suit may be decreed in terms of this compromise memo. The compromise memo to form a part of the decree.'

4. In view of the above, this Civil Suit is disposed of in terms of memorandum of compromise and the memorandum of compromise shall form part of the decree. Consequently, connected applications are closed, if any. Considering the facts and circumstances of the case, there shall be no

order as to costs.

Sd./-N.A.V.J.

04.02.2022 //Certified to be true copy// Dated at Madras this the day of 2022. COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.