Hatsun Agro Product Ltd v. A.Z.Arogya Milk

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.12.2019

CORAM

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Hatsun Agro Product Ltd., Having registered office at No.1/20-A, Rajiv Gandhi Salai (OMR) Karapakkam, Chennai - 600097.

And also carrying on its business at - Old No.AD-83/New No.AD13, Anna Nagar, Opp.: IOB Towers Branch, Chennai - 600040.

Represented by its Authorized Signatory ... Plaintiff Vs.

A.Z.Arogya Milk, Proprietor - Mr.Nasirahmad K.Jagirdar, Ayush Petrol Pump, Parik Parci Adda, Near Gunnapur Road, Vijayapur - 586101, Karnataka.

... Defendant Plaint 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 praying as follows :- (a) For Permanent Injunction restraining the defendant by itself, its agents, servants, distributors or any one claiming through it from using in 1/8

any manner whatsoever upon and in relation to their business the "AROKYA" trademark by exposing for sale or using them 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 so as to infringing or causing infringement of the Plaintiff's trademark as described in the Schedule to the Plaint.

(b) for permanent injunction restraining the defendant by itself, its agents, servants, distributors or any one claiming through it from using in any manner whatsoever upon and in relation to their business the 'AROKYA' trade marks, artwork, colour schemes and trade dress and/or deceptive variations thereof so as to passing off or enable others to indulge in the act of passing off its goods or business as that of the plaintiff's or in some way convey a connection with the plaintiff as described in the Schedule to the Plaint.

(c) directing the defendant to surrender to the plaintiff the entire 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 defendant to render true and faithful accounts of the profits earned by them through the sale of the offending milk products bearing the offending trademark label and directing payment of such profits to the plaintiff.

(e) directing the defendant to pay to the plaintiff the cost of the suit.

For Plaintiff : Mr.Aashish Jain Lunia and Mr.Prashant Alai for M/s. Surana & Surana 2/8

For Defendant : Set exparte

JUDGMENT

The plaintiff is the registered proprietor of the trademark "AROKYA". The suit is filed alleging that the defendant with intention to deceit the public and cause damage to the reputation of the plaintiff, indulged in infringement of the trademark and passing off by imitating the trademark of the plaintiff "AROKYA" with identical name "AZ AROGYA".

2. According to the plaintiff, they had obtained registration for their trademark from the Registrar of Trademarks as under :- S.NO.

TRADEMARK CLASS NUMBER STATUS TYPE OF MARK 1.

AROKYA FRESH CREAMY MILK 669001 Registered Device 2.

AROKYA (label) 1402205 Registered Word 3.

AROKYA (Tamil) 29 1402212 Advertised Device 4.

AROKYA Milk (Malayalam) 1421080 Registered Word 5.

AROKYA Milk (Telugu) 1421081 Registered Word 6.

AROKYA Milk 1421082 Registered Word 7.

AROKYA 2469516 Registered Word 3/8

8.

AROKYA 2574529 Registered Device 9.

AROKYA MILK 2791526 Registered Device 10.

AROKYA MILK 2791527 Registered Device 11.

AROKYA MILK 2791528 Registered Device 12.

AROKYA MILK 2791529 Registered Device 13.

AROKYA 2871351 Registered Device 14.

AROKYA CURD 3989206 Pending Device 15.

AROKYA CURD 3989207 Pending Device 16.

AROKYA CURD 3989208 Pending Device 17.

AROKYA CURD 3989209 Registered Device 18.

AROKYA DOUBLE TONED MILK 4026601 Pending Device 19.

AROKYA TONED MILK 4026602 Pending Device 20.

AROKYA STANDARDISED MILK 4026603 Pending Device 21.

AROKYA FULL CREAM MILK 4026604 Pending Device 22.

AROKYA 2467714 Registered Word 23.

AROKYA 2574530 Pending Device 24.

AROKYA 2871352 Pending Device 25.

AROKYA 2467715 Registered Word 26.

AROKYA 2574531 Registered Device 27.

AROKYA 2871353 Registered Device 28.

AROKYA 1402206 Registered Word 29.

AROKYA 1402211 Registered Word 30.

AROKYA 2467716 Registered Word 31.

AROKYA 2574532 Registered Device 32.

AROKYA 2871354 Registered Device 4/8

3. Whereas, the defendant has damaged the goodwill of the plaintiff by adopting the trade mark "AZ AROGYA" which is identical and deceptively similar to the trademark of the plaintiff "AROKYA". Hence, sought for the following relief :- (a) For Permanent Injunction restraining the defendant by itself, its agents, servants, distributors or any one claiming through it from using in any manner whatsoever upon and in relation to their business the "AROKYA" trademark by exposing for sale or using them 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 so as to infringing or causing infringement of the Plaintiff's trademark as described in the Schedule to the Plaint.

(b) for permanent injunction restraining the defendant by itself, its agents, servants, distributors or any one claiming through it from using in any manner whatsoever upon and in relation to their business the 'AROKYA' trade marks, artwork, colour schemes and trade dress and/or deceptive variations thereof so as to passing off or enable others 5/8

to indulge in the act of passing off its goods or business as that of the plaintiff's or in some way convey a connection with the plaintiff as described in the Schedule to the Plaint. (c) directing the defendant to surrender to the plaintiff the entire 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 defendant to render true and faithful accounts of the profits earned by them through the sale of the offending milk products bearing the offending trademark label and directing payment of such profits to the plaintiff. (e) directing the defendant to pay to the plaintiff the cost of the suit.

4. Based on the AOS filed by the learned counsel, this Court has set the defendant exparte on 11.11.2019. Thereafter, exparte evidence has been recorded by the learned Master. Before the Master, PW1 was examined on the side of the plaintiff and 58 documents were marked. 6/8

5. A perusal of the plaint averment and the proof affidavit along with exhibits marked, this Court, finds that the plaintiff Company is the owner of the registered trademark "AROKYA" for the products which fall under Class 29, 30, 31 and 32. Registration certificates are marked as Ex.P24 to P55 proves the said fact. The photocopy of the defendant's product package is marked as Ex.P57. The plaintiff has issued a legal notice which is marked as Ex.P58 to the defendant to cease and desist from infringing the trademark. Despite the notice, the defendant neither replied nor stopped marking its product as of the product of the plaintiff.

6. On comparing the registered trademark of the plaintiff with that of the mark found on the product of the defendant, this Court, finds that it is deceptively similar and identical also. The public will be misleaded by the colour and scheme of the defendant's product and it is easily get passed off as it is the product of the plaintiff. Therefore, this Court, finds that the suit has to be allowed as prayed for. Accordingly, the suit is allowed. With costs. 11.12.2019 Index : Yes / No Internet : Yes / No sni 7/8

Dr.G.JAYACHANDRAN,J.

sni 11.12.2019 8/8