Aachi Spices and Foods Pvt Limited vs Aachi Restaurant and Foods Private Limited

C.V. Karthikeyan, J.—This civil suit has been filed, to pass a judgement and decree, against the Defendant:-

a) granting permanent injunction, restraining the Defendant from manufacturing, selling, advertising and offering for sale using the name AACHI used by the Plaintiffs and the Company name AACHI RESTAURANT AND FOODS PRIVATE LIMITED or any other similar trademark name or similar sounding expression in any media with respect to the restaurant, hotel, fast food or any other such business and use the same in name board, invoices, letter heads and visiting cards or by using any other trademark which is in any way visually or deceptively or phonetically similar to the Plaintiff''s trademark AACHI and use the same in pouches, packets or use the mark in invoices, letter heads and visiting cards or any other trade literature or by using any other trademark which in any way visually, or phonetically similar to the Plaintiffs''s registered trademark nos. 922594 922595 1374937 1340324, 1340325, 1367430, 1372439, 1372440, 1375754, 838786, 976559, 1025302, 1025304, 1025305, 1318493, 1318494, 1318495, 1375755, 1375756, 1380625, 1357284, 1479158, 1479159, 1418281, 1025303, 1415328, and 1116254 or in any manner infringing the Plaintiffs'' registered trademark.

b) directing the Defendant to surrender to the Plaintiffs all the packing material, cartons, advertisement materials and hoardings, letter heads, visiting cards, office stationery and all other materials containing/bearing the name AACHI as shown in Document No.2 or other deceptively similar trademark used in the pouches and packets bearing the word AACHI.

c) directing the Defendant to render account of profits made by them by use of the impugned trademark and get up as shown in Document No.2 on the goods referred and granting decree for the profits found to have been made by the Defendant, after the Defendant has rendered the accounts.

d) directing the Defendant to pay the costs of the suit to the Plaintiffs.

The case of the Plaintiff is that the Plaintiff Company has been carrying on the business of manufacturing and selling various kinds of masalas and spices from 1995. The Plaintiffs are dealing in about 130 different products bearing the trademark AACHI. The Plaintiffs have also spent huge money towards advertising their products under the trademark AACHI in all forms of media and had also received awards for the quality of their products and customer service. The expression AACHI has become very popular and is a very valuable intellectual property of the Plaintiffs and the said trademark is unique and distinctive.

The subject matter of the suit is in respect of the word mark of the Plaintiffs AACHI. This word is the registered trademark of the Plaintiffs. The turnover and promotional expenditure incurred by the Plaintiff was Rs.3,96,420 and Rs.9,893 for the financial year 1995-1996 and had been gradually increased in the subsequent years and it was Rs.679,372,791.00/- and Rs.17,470,230/- in the financial year 2010-2011. It had further been stated in the plaint that the Registrar of Trademarks had granted registration for the trademark AACHI in Reg.No.922594 on 04.05.2000 in Class 29. Thus, the Plaintiffs have sole proprietary right over the said trademark. The Plaintiffs had also obtained registration of the trademark AACHI CHETTINADU RESTAURANT under no.1116254 dated 3.7.2002 in class 30. While so, in September 2010, the Plaintiffs came to know that the Defendant is also doing restaurant business under the name and style of AACHI RESTAURANT & FOODS PRIVATE LIMITED, which was incorporated on 21.8.2009. The name of the Defendant Company consists of the word AACHI, which is a blatant infringement of the registered trademark of the Plaintiffs AACHI and both are visually and phonetically similar. As the Defendant is violating and copying the trademark of the Plaintiffs, the conduct of the Defendant would amount to fraud.

It had been further stated that the Defendant is using the deceptively similar mark of the Plaintiffs. The label of the Defendant consists of the word AACHI incorporated in the name AACHI RESTAURANT & FOODS PRIVATE LIMITED. The use of the same is bound to create confusion and deception in the market. The general public will assume that there is a business relationship between the Plaintiffs and the Defendant has no right whatsoever to use the mark AACHI, which is visually, phonetically and deceptively identical to that of the Plaintiffs. The conduct of the Defendant amounts to falsification of the trademark, an offence punishable under the Trade Marks Act, 1999 apart from action of infringement of the registered trademark of the Plaintiffs. The trademark has been adopted by the Defendant in order to enrich themselves illegally. The Defendant should not be allowed to malign and dilute the goodwill and reputation enjoyed by the Plaintiffs. In such circumstances, this civil suit has been filed for the reliefs as stated above.

Summons issued on 14.12.2010 to the sole Defendant was returned unserved as ''no such person''. Thereafter, it had been noted by the Master, by order dated 19.4.2011, that service on the Defendant had been completed. However, no written statement has been filed by the Defendant and hence, the matter was posted under the caption of ''Undefended Board''. For non filing of the Written Statement, the Defendant was set ex parte and Ex parte Evidence was ordered to be recorded by the order of this court dated 07.12.2016.

One B.Gnanasambandam, AGM of the Plaintiff Company had filed the proof affidavit for his chief examination and receipt of 32 documents. In the Ex parte Evidence, the said AGM examined himself as PW.1 and marked Exs.P1 to P32 as documentary evidence to prove the suit claim.

In this civil suit, the Plaintiffs had sought for the relief (a) and (b) relating to infringement of the trademark of the Plaintiffs by the Defendant and surrender of the materials by the Defendant for destruction respectively. In this regard, apart from the fact that the Defendant did not let in evidence whatsoever and remained ex parte, this court finds that there are valid evidence, both oral and documentary, adduced by the Plaintiffs. Therefore, taking into consideration the materials on record and there was also payment of court fee by the Plaintiffs, this Court is of the view that only the reliefs (a) and (b) as prayed for by the Plaintiff can be granted along with costs.

In so far as the relief (c), namely, to pass a judgement and decree, directing the Defendant to render accounts of profits made by the Defendant on account of the usage of the trademark of the Plaintiffs by the Defendant is concerned, though for non filing of the written statement, the Defendant had been set ex parte, which resulted in recording of the ex parte evidence, in order to sustain such a claim for rendering of accounts of profits, there should be valid evidence on the side of the Plaintiffs, but, on a perusal of the oral and documentary adduced by the Plaintiffs, this court finds no valid evidence both oral and documentary to show that the Plaintiffs had sustained loss of profit because of the use of the trademark of the Plaintiffs by the Defendant. The Plaintiffs also did not produce any evidence to show that the Defendant had unlawfully gained against the Plaintiffs. Therefore, in the absence of any evidence, showing that the Plaintiffs have directly suffered and incurred business loss owing to the usage of the trademark of the Plaintiffs by the Defendant, this court holds that the relief (c) sought for by the Plaintiffs for a direction to render accounts of profits would not lie and accordingly, the same cannot be granted.

In the result, considering the oral and documentary evidence, viz. Ex.P1 to Ex.P32 adduced by PW.1, this Court is of the view that the Plaintiff has proved the suit claim only in respect of the reliefs (a) and (b) and that the Plaintiff has failed to prove the relief (c) by letting in legally acceptable oral and documentary evidence. Accordingly, this civil suit is decreed only in respect of the reliefs (a) and (b) with costs. In so far as the relief (c) is concerned, this civil suit is dismissed.

List of Witnesses Examined on the side of the Plaintiffs:-

P.W.1 - B.Gnanasambandam

List of Exhibits Marked on the side of the Plaintiffs:-

S.No

Exhibit

Description

1

Ex.P. 1

Original authorization letter dated 12.12.2016.

2

Ex.P. 2

Original label of the Plaintiffs AACHI Chettinadu Restaurant.

3

Ex.P. 3

Copy of legal use certificate for application no.922594 dated 18.6.2008.

4

Ex.P. 4

Copy of registration certificate under number 1116254 along with legal use certificate reflecting the renewal of the trade mark till 3.7.2022.

5

Ex.P. 5

Series Copy of legal use certificate of trademark nos.922595 1374937 1340324 1340325 1367430 1372439 1372240 1375754 1318493 1318494 1318495 1375756 1380625 and 1357284.

6

Ex.P. 6

Series Copy of registration certificates for A.Nos.838786, 976559, 1025305 and 1375755.

7

Ex.P. 7

Copy of certificate of registration for Commercial Tax purposes of Abishek Enterprises, dated 26.08.1997

8

Ex.P. 8

Copy of certificate of registration of income tax returns of A.D.Padmasingh Isaac Proprietor of Abishek Enterprises.

9

Ex.P. 9

Copy of expenditures cash bills for the years 1995 to 2001.

10

Ex.P. 10

series Copies of sales invoices in the name of Abishek Enterprises for the years 1995 to 2002 and 2003.

11

Ex.P. 11

series Copies of sales invoices in the name of Naveen products for the years 2002 to 2003.

12

Ex.P. 12

Copy of best FMCG Industry Award received by the Naveen Products.

13

Ex.P. 13

Copy of Isha Arokya Alai Rural Health Awareness Campaign.

14

Ex.P. 14

Copy of health control magazine in the month of April-May 2008.

15

Ex.P. 15

Copy of letter by health control medical magazine to A.D.Padmasingh Isaac dated 15.7.2008.

16

Ex.P. 16

Copy of vellammal''s best entrepreneur award dated 18.9.2008.

17

Ex.P. 17

Copy of the certificate of incorporation dated 23.7.2001.

18

Ex.P. 18

Copy of certificate of registration under the central sales tax (registration and turnover) Rules 1957 dated 22.12.2003.

19

Ex.P. 19

Copy of the registration certificate in Aachi Spices and Foods is issued under (TNGST Act, 1959) dated 28.12.2003.

20

Ex.P. 20

Copy of certificate of registration issued under TNVAT Act, dated 3.1.2007.

21

Ex.P. 21

Copy of TM-33 for A.No.922594 and the fee receipts showing the filing of TM-33 and TM-16 in the Trade mark registry.

22

Ex.P. 22

Copy of trade mark license user agreement dated 1.45.2007.

23

Ex.P. 23

Copy of certificate of registration issued under the TNGST Act, dated 10.7.2003.

24

Ex.P. 24

Copies of expenditure invoices for the years 2002 to 2003.

25

Ex.P. 25

Copy of the order of the Managing Director TNSCS dated 20.9.2008.

26

Ex.P. 26

Copies of the advertisements bills from the Vasan Publication for the years 2007 and 2008.

27

Ex.P. 27

Copies of sales invoices for the year 2003 to 2008 by Aachi Masala Foods Pvt. Limited.

28

Ex.P. 28

Copy of letter by Parle Global Technologies (P) Ltd. To A.D.Padmasingh Isaac dated 29.9.2008.

29

Ex.P. 29

Copy of the award by the Rotary Club of Chennai-Glaxo to A.D.Padmasingh Isaac.

30

Ex.P. 30

Copy of advertisements of the plaintiffs in Hindu News paper and the certified copy of the advertisement in RITX Magazine.

31

Ex.P. 31

Copy of the defendant certificate of incorporation dated 21.8.2009.

32

Ex.P. 32

Office copy of application filed under section 22 of Companies Act, dated 27.9.2010.

List of Witnesses Examined on the side of the Defendant:-

Nil

LIst of Exhibits Marked on the side of the Defendant:-

Nil