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Madras High CourtCS/286/2014decreed

Mr.A.D.Padmasingh Isaac v. Aachi Kitchen

2019-10-14Honourable Mr Justice N. Sathish Kumar15 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :14.10.2019 Coram The Honourable Mr.Justice N.SATHISH KUMAR

1. Mr.A.D. Padmasingh Issac

2. M/s. Aachi Masala Foods (P) Ltd., Old No.4, New No.181/1, 6th Avenue, Thangam Colony, Anna Nagar, Chennai - 600 040 rep. By its Director, Mr. Aswin Pandian ...Plaintiffs

Versus

Aachi Kitchen, 107/2, Ampa Skywalk Mall, Nelson Manickam Road, Aminjikarai, Chennai - 600 029.

...Defendants This Civil Suit is filed under Order IV Rule 1 of the Original Side Rules and Order VII, Rule 1 of the Code of Civil Procedure read with Sections 27(2), 29, 134 & 135 of the Trade marks Act, 1999, prayed (a) granting a permanent injunction, restraining the defendant, by himself, his servants, agents, distributors, or anyone 1/15

claiming through him from manufacturing, selling, advertising and offering for sale using the same name AACHI/AACHI KITCHER Perfect Chettinad or any other similar Trade Mark name or similar sounding expression in any media and use the same in name board, invoices, letter heads and visiting cards or by using any other trade mark/name which is in any way visually or deceptively or phonetically similar to the Plaintiff' trade mark/name AACHI and use the same in pouches, packets or use the mark in invoices, letter heads and visiting cards or part of their Hotel/Restaurant name any other trade literature or Menu card by using any other trade mark which is in any way visually, or phonetically similar to the Plaintiff' registered Trade Mark AACHI CHETTINADU RESTAURANT under NO.

1116254 or in any manner infringing the Plaintiff's registered Trade Marks referred herein. (b) granting a permanent injunction, restraining the defendant, by itself, its agents or servants or anyone claiming through or under him any business marketing, selling advertising using in trade literature, menu cards, invoices, name boards, website, internet advertisements the mark/name AACHI KITCHEN Perfect Chettinad/AACHI Chettinad Restaurant in relation to the Restaurant or with respect to or any other food preparation or on any other business the impugned trademark/name which is in any manner deceptively or phonetically confusingly similar to the Plaintiff's Trade Mark/name AACHI or in any other manner pass off their business or goods as and for that of the plaintiffs.

(c) directing the defendant to surrender to the plaintiff all the packing material, cartons, advertisement materials and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing the name AACHI KITCHEN perfect Chettinad or other identical trade mark used in the pouches and packets bearing the word AACHI.

(d) directing the Defendant to render an account of profits made by them by the use of the impugned trademark AACHI KITCHEN Perfect Chettinad on the service referred and decree the suit for the profits found to have been made by the Defendants, after the Defendants have rendered accounts:

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

For Plaintiffs : Mrs.Gladys Daniel For Defendant : Defendant set exparte vide order dated 23.09.2019.

J U D G M E N T

The suit has been filed for the following reliefs: (a) granting a permanent injunction, restraining the defendant, by himself, his servants, agents, distributors, or anyone 3/15

claiming through him from manufacturing, selling, advertising and offering for sale using the same name AACHI/AACHI KITCHER Perfect Chettinad or any other similar Trade Mark name or similar sounding expression in any media and use the same in name board, invoices, letter heads and visiting cards or by using any other trade mark/name which is in any way visually or deceptively or phonetically similar to the Plaintiff' trade mark/name AACHI and use the same in pouches, packets or use the mark in invoices, letter heads and visiting cards or part of their Hotel/Restaurant name any other trade literature or Menu card by using any other trade mark which is in any way visually, or phonetically similar to the Plaintiff' registered Trade Mark AACHI CHETTINADU RESTAURANT under NO.

1116254 or in any manner infringing the Plaintiff's registered Trade Marks referred herein.

Perfect Chettinad/AACHI Chettinad Restaurant in relation to the Restaurant or with respect to or any other food preparation or on any other business the impugned trademark/name which is in any manner deceptively or phonetically confusingly similar to the Plaintiff's Trade Mark/name AACHI or in any other manner pass off their business or goods as and for that of the plaintiffs. (c) directing the defendant to surrender to the plaintiff all the packing material, cartons, advertisement materials and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing the name AACHI KITCHEN perfect Chettinad or other identical trade mark used in the pouches and packets bearing the word AACHI.

(d) directing the Defendant to render an account of profits made by them by the use of the impugned trademark AACHI KITCHEN Perfect Chettinad on the service referred and decree the suit for the profits found to have been made by the Defendants, after the Defendants have rendered accounts:

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

2. The case of the plaintiffs is that the plaintiffs trademark 'AACHI' is synonymous with a variety of spices, condiments, food products and ready to eat preparations marketed under the name. The trademark 'AACHI' has created for itself an indelible mark in the market with respect to food preparations. The plaintiffs trademark 'AACHI' has gained reputation, goodwill amongst the public and it has become a common household name. The plaintiffs have been using the trademark 'AACHI' in respect of all the masala preparations from the commencement of its business. The 1st plaintiff has sole proprietary right over the mark 'AACHI'. The list of all the applications registered in the name of the plaintiffs are mentioned hereunder:

No.

Trademark/D Evice Appln.No.

Date Class Advt. Jr.

Status 1.

AACHI 838786 29.01.1999 30 Registered 2.

AACHI 922594 04.05.2000 29 Mega (Spl2) Registered 6/15

No.

Trademark/D Evice Appln.No.

Date Class Advt. Jr.

Status 3.

AACHI 922595 04.05.2000 32 Mega (Spl2) Registered 4.

AACHI 976559 12.02.2000 30 Registered 5.

AACHI Masala Chilly Powder 1025302 11.07.2001 30 Registered 6.

AACHI Asafetida 1025303 11.07.2001 30 Registered 7.

AACHI Turmeric Powder 1025304 11.07.2001 30 Registered 8.

AACHI SPICES 1025305 11.07.2001 30 Registered 9.

AACHI Masala Idly Chilly Powder (Label) 1318493 01.11.2004 30 Registered 10.

AACHI Appalams 1318494 01.11.2004 30 Registered 11.

AACHI Masala Kulambu Chilly Powder (Label) 1318495 01.11.2004 30 Registered 12.

AACHI Orid Dhall (Label) 1334479 25.01.2005 30 Registered 13.

AACHI Ready to Eat Nethili Kulambu (Label) 1340323 23.02.2005 29 Registered 14.

AACHI Ready to Eat Seer Fish Kulambu (Label) 1340324 23.02.2005 29 1366-sup-1 Registered 15.

AACHI Prawn 1340325 23.02.2005 29 1336-sup-1 Registered 7/15

No.

Trademark/D Evice Appln.No.

Date Class Advt. Jr.

Status Kulambu (Label) 16.

AACHI 1357284 16.05.2005 32 1337-sup-1 Registered 17.

AACHI Refined Sunflower Oil 1367430 28.06.2005 29 Registered 18.

AACHI 1372439 19.07.2005 29 1340-sup-1 Registered 19.

AACHI Ghee (Label) 1372440 19.07.2005 29 Registered 20.

AACHI WHEAT 1373993 26.07.2005 30 Registered 21.

AACHI Herbal Soapnut Powder (Label) 1374937 02.08.2005 03 Registered 22.

AACHI Seedless Dates (Label) 1375754 05.08.2005 29 Registered 23.

AACHI Masala Sambar Powder (Label) 1375755 05.08.2005 30 Registered 24.

AACHI Ready to Cook Instant Biriyani (Label) 1375756 05.08.2005 30 Registered 25.

AACHI Readt to Cook Instant Biriyani (Word) 1380625 16.08.2005 30 Registered 26.

AACHI Masala Rice for Biriyani 1415328 20.01.2006 30 Registered 27.

AACHI Masala Rice for 1415329 20.01.2006 30 Registered 8/15

No.

Trademark/D Evice Appln.No.

Date Class Advt. Jr.

Status Biriyani (Label) 28.

AACHI Gulab Jamun-Mix (Label) 1418281 01.02.2006 30 Registered 29.

AACHI (Tamil) `1458532 01.06.2006 42 Registered 30.

AACHI (Tamil & English) 1479158 17.08.2006 42 1386-sup-1 Registered 31.

AACHI (Tamil & English) 1479159 17.08.2006 30 Registered 32.

AACHI Pongal Sambar Ready to Eat (Label) 1526516 01.02.2007 30 Registered 33.

AACHI 1555564 03.05.2007 29 Registered 34.

AACHI Gingeley Oil (Label) 1557660 11.05.2007 29 Registered 35.

AACHI 1564085 31.05.2007 05 Registered 36.

AACHI 1567065 11.06.2007 31 Registered 37.

AACHI 1567066 11.06.2007 27 Registered 38.

AACHI 1567067 11.06.2007 34 Registered 39.

AACHI 1567068 11.06.2007 21 Registered 40.

AACHI Badam Drink (Label) 1581011 18.07.2007 29 Registered 41.

AACHI (Label) 1595537 28.08.2007 30 Registered 42.

AACHI (Label) 1595538 28.08.2007 05 Registered 43.

AACHI (Label) 1595539 28.08.2007 29 Registered 44.

AACHI (Label) 1595540 28.08.2007 03 Registered 45.

AACHI (Label) 1595542 28.08.2007 32 Registered 46.

AACHI (Label) 1595544 28.08.2007 31 Registered 9/15

No.

Trademark/D Evice Appln.No.

Date Class Advt. Jr.

Status 47.

AACHI (Label) 1595545 28.08.2007 27 Registered 48.

AACHI Chicken Curry Masala (Label) 1604348 21.09.2007 30 Registered 49.

AACHI Turmeric Powder (Label) 1702840 24.06.2008 30 Registered 50.

AACHI Chema Puttu Powder (Label) 1702848 24.06.2008 30 Registered 51.

AACHI Chicken Masala (Label) 1720889 13.08.2008 30 Registered

3. When the things stood thus, the defendant started the restaurant bearing the name 'AACHI KITCHEN Perfect Chettinad' infringing the plaintiffs registered trademark 'AACHI Chettinad Restaurant'. The two marks are visually and phonetically similar. Hence, the suit has been filed for the relief as stated supra.

4. Though suit summons was served, the defendant had not entered appearance either in person or through counsel. Therefore, the defendant was set ex parte by this court vide order 10/15

dated 23.09.2019.

5. On the side of the plaintiffs, the Deputy Manager - Legal and Statutory of the second plaintiff Company was examined as P.W.1 and the following documents were marked as Exs.P1 to P18. S.N o.

Date Description of documents Exhibit 1.

01.10.2019 Original Authorization letters P-1 2.

- Printout copy of the list of products manufactured and marketed by the plaintiffs bearing the trademark 'Aachi'

P-2 3.

30.06.2006 Photocopy of the certificate of Incorporation of Aachi Masala Foods (P) Ltd P-3 4.

01.12.2006 Copy of the Deed of Assignment between Abishek Enterprises and Aachi Masala Foods (P) Ltd P-4 5.

31.03.2007 Photocopy of the dissolution deed between Mrs. Rani Pandian and the Mr. A.D.Padmasingh Isaac dissolving the partnership firm, Naveen products P-5 6.

01.12.2006 Copy of Deed of Assigment between Naveen Products and Aachi Masala Foods Pvt. Ltd P-6 7.

28.12.2007 and 03.01.2007 Photocopy of the Certificate of Commercial Tax Registration and Central Sales Tax of Aachi Spices and Foods P-7 8.

30.03.2007 Copy of Deed of Assignment between Aachi Masala Foods Pvt. Ltd and Mr. A.D.Padmasingh Issac trading as Aachi Spices and Foods P-8 9.

10.07.2006 Photocopy of the Certificate Commercial Tax P-9 11/15

S.N o.

Date Description of documents Exhibit Registration of Aachi Masala and Foods (P) Ltd 10.

01.04.2007 Photocopy of the Trade mark License user agreement between Mr.A.D.Padmasingh Isaac trading as Aachi Spices and Foods and Aachi Masala foods (P) Ltd P-10 11.

17.03.2010 Photocopy of the Certificate of Incorporation of Aachi Spices and Foods P Ltd P-11 12.

06.03.2010 Photocopy of the Memorandum of Association of Aachi Spices and Foods Ltd P-12 13.

21.04.2010 Photocopy of the Trade Mark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods (P) Ltd P-13 14.

21.04.2010 Photocopy of the Trade Mark Licene user Agreement between Mr.A.D.Padmasingh Isaac Aachi Masala foods (P) Ltd P-14 15.

- Copy of the Plaintiffs' Advertisement in RITZ Magazine P-15 16.

- Photocopy of the Legal use certificates of the mark AACHI in various countries around the world P-16 17.

03.07.2002 Photocopy of the Legal use certificate of the Trade Mark No.11162541 in Class 30 P-17 18.

- Printout copy of the defendant's name board bearing the name AACHI KITCHEN Perfect Chettinad.

P-18

6. Heard the learned counsel for the plaintiffs and perused the materials.

12/15

7. P.W.1 has spoken about the list of products manufactured and marketed by the plaintiffs with the registered trademark 'AACHI'. The certificate of incorporation of Aachi Masala Foods (P) Ltd, dated 30.06.2006 has been marked as Ex.P3. The photocopies of the trademark license user agreement between Mr.A.D.Padmasigh Issac and Aachi Spies and Foods (P) Ltd dated 21.04.2010, have been marked as Exs.P13 and P14. Ex.P16 has been marked to show that the plaintiff has obtained registration certificate of the mark 'AACHI' in various countries around the world. Ex.P17 is the photo copy of the legal user certificate of the Trade Mark No.1116254 in Class 30, dated 03.07.2002. Ex.P18 is the printout copy of the defendant's name board bearing the name 'AACHI KITCHEN Perfect Chettinad'.

8. P.W.1 has not only spoken about the business under the trademark 'AACHI' but has also spoken about the turnover, goodwill and reputation gained by the plaintiff amongst the public. Ex.P18, defendant's name board bearing the word mark 'AACHI 13/15

KITCHEN Perfect Chettinad' is visually and phonetically similar to that of the plaintiff 'Aachi Chettinad Restaurant' and, in fact, it leads to confusion among the people.

9. From the above documents, the plaintiffs have proved their claim. Accordingly, the suit is decreed in respect of prayers 'a' and 'b'. As far as prayers 'c' and 'd' are concerned, the learned counsel for the plaintiff submitted that the plaintiffs will be satisfied if the suit is decreed in respect of prayers 'a' and 'b'. Hence, the suit is dismissed against the prayers 'c' and 'd'.

10. In the result, the suit is decreed as indicated above with costs.

14.10.2019 Index : Yes/No rst 14/15

N.SATHISH KUMAR , J., rst 14.10.2019 15/15