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2020 DIGILAW 2133 (MAD)

A. D. Padmasingh Issac v. Nithya

2020-11-10

C.V.KARTHIKEYAN

body2020
JUDGMENT : C.V. KARTHIKEYAN, J. Prayer: Plaint filed under and 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 of the Trade Marks Act, 1999 prayed for a Judgment and Decree:- (a) granting a permanent injunction, restraining the defendant, by itself, its servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using same or similar label, get up, and colour scheme use in social media or any other media the trademark AATHI or the floral pattern or red oval device in relation to any chilli or coriander powder, masala and use the same pouches, packets of masalas and spices or any other goods or by using any other Trademark which is any way visually, and deceptively similar to the plaintiffs' registered Trademark “AACHI” word and device label or by using any other Trademark which is in any way visually, deceptively similar to the plaintiffs' registered Trademark No. 838786, 1731915, 3352398, 3352399, 3352400, 3352401, 3352402, 3352403, 3352404, & 3352405 or in any manner infringe the plaintiffs' registered Trademark. (b) granting a permanent injunction, restraining the defendant, by itself, its servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using same or similar get up and colour scheme on social media or any other media using the trademark AATHI and the pouch as shown in Document No. 2 by using any other trade mark which is in any way, phonetically, visually or deceptively similar to the plaintiffs' Trademark “AACHI” and pouch as shown in Document No. 1 relation to any chilli or coriander powder, masala items and use the same pouches, packets of masalas and spices or any other goods or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other Trademark which is in any way visually and deceptively similar to the plaintiffs' Trademarks “AACHI” and pouch as shown in Document No. 1 in any manner pass off the plaintiffs goods. (c) directing the defendants to surrender to the plaintiffs all the packing material, cartons, advertisement materials and hoardings, letterheads, visiting cards, office stationery and all other materials containing/bearing the name AATHI or other deceptively similar trade mark used in the pouches and packets in respect of masalas. (c) directing the defendants to surrender to the plaintiffs all the packing material, cartons, advertisement materials and hoardings, letterheads, visiting cards, office stationery and all other materials containing/bearing the name AATHI or other deceptively similar trade mark used in the pouches and packets in respect of masalas. (d) directing the defendants to render an account of profits made by them by the use of the impugned Trademark get up AATHI on the goods referred and decree the suit for the profits found to have been made by the defendants, after the defendants has rendered accounts. (e) directing the defendants to pay to the plaintiffs the costs to the suit. 1. A Memorandum of Compromise entered into between the Plaintiffs and the Defendant had been forwarded to the Registry. This Memorandum of Compromise dated 01.10.2020 had been executed at Tenkasi. The Memorandum of Compromise has also therefore been notarized by a Notary at Tenkasi. 2. It has also been signed by the learned counsels for the plaintiffs and the defendant. There are some annexure also to the Memorandum of Compromise regarding the agreement reached regarding the colour scheme and get up of the pouches. 3. The relevant portion of the Memorandum of Compromise are as follows: “5. The defendant submit to a Judgment and Decree as prayed for in terms of prayers (a) and (b) of para-36 of the plaint for: (a) granting a permanent injunction, restraining the defendant, by itself, its servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using same or similar label, get up and colour scheme use in social media or any other media the trademark AATHI or the floral pattern or red oval device in relation to any chilli or coriander powder, masala and use the same pouches, packets of masalas and spices or any other goods or by using any other Trademark which is any way visually, and deceptively similar to the plaintiffs' registered Trademark “AACHI” word and device label or by using any other Trademark which is in any way visually, deceptively similar to the plaintiffs' registered Trademark No. 838786, 1731915, 3352398, 3352399, 3352400, 3352401, 3352402, 3352403, 3352404 and 3352405 or in any manner infringe the plaintiffs' registered Trademark. (b) granting a permanent injunction, restraining the defendant, by itself, its servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using same or similar get up and colour scheme on social media or any other media using the trademark AATHI and the pouch as shown in Document No. 2 by using any other trade mark which is in any way, phonetically, visually or deceptively similar to the plaintiffs' Trademark “AACHI” and pouch as shown in Document No. 1 relation to any chilli or coriander powder, masala items and use the same pouches, packets of masalas and spices or any other goods or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other Trademark which is in any way visually and deceptively similar to the plaintiffs' Trademarks “AACHI” and pouch as shown in Document No. 1 in any manner pass off the plaintiffs goods. 6. The defendant undertakes to withdraw any application filed for registration of the trademark AATHI with respect to spices 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 plaintiffs Trademark/name AACHI or in any other manner. 7. The Defendant undertakes not to oppose the Applications filed by the plaintiffs for the registration of the trademark AACHI. 8. The Defendant has not adopted and shall not adopt any of the word or visual features of the plaintiffs' Trademark AACHI or any mark deceptively similar thereto in future. 9. The Defendant shall not use or make any application for registration of the Trademark AATHI/AACHI or its formative marks in future. 10. The Defendant shall use the Trademark ASJ Namma Veetu Masala for its spices and spice mixtures for which the plaintiffs have no objection. Copy of the labels of the Defendant are filed as ANNEXURE-A. “In view of the decree for permanent injunction, the plaintiffs have given up the relief contained in prayers (c), (d) and (e) in para-36 of the suit including cost of the suit.” 4. The annexure are also extracted below: “IMAGE” 5. Since both the parties have agreed to the terms of the Memorandum of Compromise, the same is recorded and the suit is decreed accordingly. No order as to costs. Consequently, connected Applications are closed. The annexure are also extracted below: “IMAGE” 5. Since both the parties have agreed to the terms of the Memorandum of Compromise, the same is recorded and the suit is decreed accordingly. No order as to costs. Consequently, connected Applications are closed. The Memorandum of Compromise shall form part of the decree. Registry may print in colour of the Annexure while drafting the decree.