A.D. PADMASINGH Vs. K. LAKSHMANAN PROPRIETOR

JUDGEMENT

(1.) The present suit is filed seeking for the relief of permanent injunction restraining the defendant from using pouches which are deceptively similar in respect of chilly powder, sambar powder, rasam powder, chicken 65/kabab fry mix powder, mutton masala, kulambu chilly powder, lemon rice powder, idli chilly powder cumin powder, fennel powder, coriander powder, egg curry masala, fish curry masala and pepper powder; for an order restraining the defendant, his servants agents distributors or anyone claiming through them from manufacturing selling advertising and offering for sale using the same or similar get up and colour scheme used by the defendant; a direction to the defendant to surrender the packing material cartons, advertisement materials and hoardings, letterheads, visiting cards, office stationery and all othermaterials containing/bearing the name AVM and packets in the colour scheme and get up; and for rendering of account of profits made by the defendant by the use of the impugned trade mark AVM and getup.

(2.) The case of the plaintiffs pertain to the infringement of the device of AACHI and passing off of the label marks. The trade mark AACHI was assigned in favour of the 1st plaintiff by one registered proprietary concern called the Aachi Masala Foods (P) on 30/3/2007. The plaintiffs state that in the year 1999, the trade mark AACHI was first applied for and registered in the name of the 1st plaintiff trading as Naveen products. The plaintiffs also state that there are currently 178 registrations of the trade mark AACHI in various words, labels and stylized marks and the 1st plaintiff also acquired international registration (WIPO) under the Madrid protocol for the trade mark AACHI word and device under classes 29, 30 and 43 in 107 and 117 designated countries respectively. It is claimed by the plaintiffs that the label marks as a whole have been used by the plaintiffs from the year 2016 and that they have become widely famous among the trading community and the public. It is further claimed by the plaintiffs that they have been using these marks AACHI with respect to almost all the masala preparations from the commencement of their business. The plaintiffs state that from the year 2016, they introduced new labelmarks across their product segments and all their marks got registered in class 30, unopposed.

(3.) The grievance of the plaintiffs is that in November 2020, they came across the defendant's turmeric powder, chilly powder, cumin powder, fennel powder, pepper powder, rasam powder, sambar powder, coriander powder, idli chilly powder, lemon rice powder, kulambu chilly powder, chicken fry mix powder, mutton masala, egg curry masala and fish curry masala, under the trade mark AVM, in the same colour scheme and get up of the plaintiffs' trade mark AACHI. It is stated by the plaintiffs that they are concerned about the label adopted by the defendant which is visually and deceptively similar to the plaintiffs' trade mark and that the defendant mark is a conscious copy of the plaintiffs' marks which is widely famous, thereby, leading to infringement and passing off of the goods of the defendant's for that of the plaintiffs. The plaintiffs further state that with respect to the use of the word mark AVM, they have no objection and that their objection is only with respect to the copying of the colour scheme, get up and the label of their mark. The further grievance of the plaintiffs is that the defendant's label consists of their trade mark AVM written prominently inside a red oval shaped bubble, which the plaintiffs claim as an imitation of the plaintiffs' device of AACHI. The plaintiff also claimedthat the colour scheme used by the defendant is copied from the plaintiffs, in all the label marks in question, and that the label is consciously copied from their label with an intention of taking undue advantage of reaping the benefits without sowing. The plaintiffs further stated that the defendant product is inferior in quality and substandard. The plaintiffs also stated that the use of the red oval device in respect of the trade mark AACHI is registered in favour of the plaintiffs' in nearly all the 45 classes and also registered in 117 countries. The plaintiffs also state that the intricate floral print in many of their spice and spice mixtures is consciously copied by the defendants, which amounts to infringement and passing off.