HINDUSTAN UNILIVER LIMITED Vs. ANNAPOORNA FOODS

JUDGEMENT

(1.) This appeal is at the instance of the unsuccessful petitioner in Application No.5296 of 2010 in C.S.No.674 of 2010 and the challenge is to the order dated 28 February 2011 dismissing the application filed under Order VII Rule 11 of the Code of Civil Procedure to reject the plaint in C.S.No.674 of 2010.

(2.) The respondents filed a suit in C.S.No.674 of 2010 praying for a decree of permanent injunction restraining the appellant from in any manner infringing their registered trade mark "Annapoorna" and for other consequential reliefs. According to the respondents, their predecessor-in-interest adopted the mark "Annapoorna" originally for his boarding and lodging business and chain of hotels owned by the group under the name and style of "Sree Annapoorna and Sri Gowri Shankar". Subsequently, a partnership was formed during the year 1980 under the name and Style of "Sree Annapoorna Gayathri Foods" which was reconstituted on 24 November 1985 and the name of the firm was changed to "Sree Annapoorna Foods". The respondents have been marketing condiments and instant foods under the name and style of "Sree Annapoorna". By virtue of long, continuous and extensive use, the trademark "Annapoorna" has become distinctive of and is immediately identified by the trade and public with the products manufactured and marketed by the respondents. The appellant attempted to sell condiments and instant food items under the name and style of "Knorr Annapurna" and "Kissan Annapurna". This made the respondents along with other partners Latha and Vijayaprasad to file a suit in C.S.No.866 of 2002 against the appellant. The respondents in the said suit prayed for a permanent injunction restraining the appellant from in any way passing off their goods of the description set out in the schedule to the plaint or its related products as that of their product either under the name and style of "Annapoorna" or under any name deceptively similar thereto. The respondents have filed an interlocutory application in the said suit. Finally, the matter was taken up before a Division Bench in O.S.A.No.246 of 2003. Before the Division Bench the appellant has given an undertaking that the spices and condiments under the trade mark "Knorr Annapurna" will not be sold in the State of Tamil Nadu. The said undertaking was recorded by the Division Bench. The suit in C.S.No.866 of 2002 is still pending on the file of this Court.

(3.) It was only during the pendency of the suit in C.S.No.866 of 2002, the respondents have filed the present suit in C.S.No.674 of 2010 on account of the subsequent events.