LAWS(MAD)-2016-9-58

A.D. PADMASINGH ISAAC Vs. V. SENTHIL KUMAR

Decided On September 26, 2016
A.D. Padmasingh Isaac Appellant
V/S
V. Senthil Kumar Respondents

JUDGEMENT

(1.) This appeal is filed against the order and decreetal order passed by this Court on 16.12.2009 in O.A. No. 118 of 2008 in C.S. No. 87 of 2008.

(2.) The facts arising out of this appeal are as under:-

(3.) The learned counsel appearing for the appellants submitted that the learned single Judge has failed to understand the scope and effect of the pleadings in the affidavit filed in support of the application, counter statements of the respondent and the reply statement of the appellants. She contended that the learned single Judge passed the order without considering the crucial points involved in the instant case and consequently, the reasons stated in the order are unsound, wrong, untenable, unreasonable and unwarranted. She further submitted that the learned single Judge, while disposing the application, has failed to discuss in the right sense, the cardinal principles, viz. prima facie case, material injury and balance of convenience which are in favour of the appellants. She stated that the learned single Judge has erred in limiting the injunction only with respect to asafoetida and that having held that the use of trademark 'AARCEE' without mega masala amounts to infringement of the appellants' rights, it follows that the use of the trademark 'AARCEE' has been in conjunction with the words mega masala and therefore, injunction should have been granted in respect of other items also. She further stated that the learned single Judge has failed to take into consideration the standard of proof required in an infringement action. She contended that the appellants are merely objecting to the use of the trademark 'AARCEE' as it is phonetically, visually, structurally and deceptively similar to the trademark 'AACHI' which is registered in favour of the appellant. But the learned single Judge has failed to appreciate the fact that the trademark 'AACHI' has acquired tremendous goodwill and reputation in the market by its overwhelming sales turnover and promotional expenditure. Stating so, the learned counsel for the appellants has submitted that this appeal has to be allowed and consequently, injunction has to be granted for all the other items in addition to the one granted in respect of asafoetida sachet.