Pushpa Sathyanarayana, J.@mdashThe plaintiffs have filed the Civil Suit against the defendant for the following reliefs:-
(a) for granting permanent injunction restraining the defendant and its men, servants, agents, distributors or anyone claiming through him from manufacturing, selling, advertising and offering for sale using same or similar get up and colour scheme used by the defendant shown in Document No. 2, or any other similar Trade Mark, or in any media and use the same in invoices, letter heads and visiting cards or by using any other trade mark which is in any way visually or deceptively or phonetically similar to the plaintiffs'' trade mark AACHI MASALA-KULAMBU CHILLY MASALA as shown in Document No. 1 or in relation to any masala items and use the same pouches, packets or use the mark in invoices, letterheads and visiting cards or any other trade literature or by using any other trade mark which is in any way visually, or phonetically similar to the plaintiffs'' registered Trade Mark No. 1318495 or in any manner infringe the plaintiffs'' registered Trade Mark;
(b) to direct 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 ARASI MASALA - KULAMBU CHILLY MASALA and packets in the Color Scheme and Get up as shown in Document No. 2 or other deceptively similar trade mark used in the pouches and packets in respect of masalas;
(c) to direct the defendant to render an account of profits made by them by use of the impugned trade mark and get up as shown in Document No. 2, on the goods referred and decree the suit for the profits found to have been made by the defendant, after the defendant have rendered accounts; and
(d) for costs of the suit.
2. The averments of the plaintiffs as set out in the plaint are as follows.
(a) The 1st plaintiff, who began as a small scale business enterprise, commenced its business in the year 1995 with the objective of manufacturing and marketing various kinds of masalas and spices for Indian tastes. The trademark ''AACHI'' has become a common household name and at present, the plaintiffs are dealing in over 130 different products bearing the trademark ''AACHI''. It is stated that within a span of 15 years, the plaintiffs have become one of the leading manufacturers of packaged masalas because of the enormous efforts and hard work they have put in and that they have also spent money towards advertising their products ''AACHI'' in all forms of media such as radio, newspapers, hoardings, magazines and television networks. The plaintiffs have also received many prestigious awards for the quality of their products and customer service. The Trademark "AACHI" has become very popular and is a very valuable and intellectual property of the plaintiffs. No one can use the said expression ''AACHI'' for spices and masalas and other goods, for which, the plaintiffs are using the mark. Among large varieties of masala preparations of plaintiffs, the subject matter of this proceedings is in respect of ''AACHI KULAMBU CHILLY MASALA'' label mark. This label mark consists of the word ''AACHI'' masala in yellow letters written in a red oval background. Above the word ''AACHI'' masala, a device of a multi-coloured flying bird is displayed inside the device of an oil drop in a yellow background. Below this pictorial device, a device of a China plate, containing various ingredients of masalas and spices, is prominently displayed in various colours. This label, as a whole, is a registered well known trade mark of the plaintiffs. The 1st plaintiff has proprietary right over this mark and any unauthorized use of the same mark or similar Trade Mark would amount to infringement. The 1st plaintiff has also filed several applications for registration of the mark AACHI in different classes, with respect to other description of goods in the same class and other classes. The 1st plaintiff has been using the mark ''AACHI MASALA'' ever since it was established in 1995 under the proprietary concern Abhishek Enterprises. Thereafter, the 1st plaintiff adopted the trading style Naveen Products, which was subsequently altered as Aachi Spices & Foods. The proprietary concern Aachi Spices and Foods was converted into the 1st plaintiff in the year 2010.
(b) In December 2010, the plaintiffs came across the defendant''s Kulambu Chilly Masala bearing the mark ''ARASI KULAMBU CHILLY MASALA'' in the same colour scheme and get up which is blatant infringement of the plaintiffs'' registered trade mark AACHI MASALA - KULAMBU CHILLY MASALA. The two are visually and phonetically similar. The defendant''s label consists of the words ''ARASI KULAMBU CHILLY MASALA'' written prominently, embossed in a red coloured label, an imitation of the plaintiffs'' colour combination in its wrapper. The defendant''s use of a strip of yellow bordering the word ''KULAMBU CHILLY MASALA'', displayed on a nearly identical device, is a blatant imitation of the plaintiffs'' wrapper bearing the mark ''AACHI MASALA - KULAMBU CHILLY MASALA''.
(c) The defendant''s use of the trademark ''ARASI KULAMBU CHILLY MASALA'' is bound to create confusion and deception in the market. The plaintiffs have been carrying on business using the trade mark ''AACHI'', with respect to masalas since 1995. The defendants are recent entrants into this field. Considering these facts, as a prior user and a registered trade mark owner, the plaintiffs have exclusive right to the trade mark ''AACHI'' including its distinctive colour scheme and get up. The adoption and use of the impugned mark and the label amounts to fraud under the Trade Marks Act. The defendant has no valid reasons whatsoever to use the mark ''ARASI - KULAMBU CHILLY MASALA'' which is visually, phonetically and deceptively identical to that of the plaintiffs''. The conduct of the defendant amounts to falsification of Trade Mark, an offence punishable under the Trade Marks Act, 1999 apart from action of infringement of the plaintiffs'' registered trade mark and passing off. Hence, the plaintiffs have come up with this suit for the reliefs stated supra.
3. Though notice was taken by the plaintiffs to the defendant, it was returned unserved with an endorsement "refused". Hence, substituted service was effected and paper publications are also filed. Thereafter, the matter was listed under the caption ''Undefended Board''. Since there was no representation on behalf of the defendant and no written statement was filed, the defendant was set ex parte and ex parte evidence was ordered by order of this Court dated 12.08.2014.
4. Mr. B. Gnanasambandam, Senior Manager - L&S, on behalf of the Plaintiffs has filed the proof affidavit for his chief examination to prove the suit claim. In the Ex parte Evidence, Mr.B.Gnanasambandam on behalf of the Plaintiffs, examined himself as PW.1 and marked the following documents as Exs. P.1 to P.9 as documentary evidence in order to prove the suit claim:-
(i) Ex. P.1 - Authorisation letter dated 02.09.2014
(ii) Ex.P.2 - Original label used by the plaintiffs company
(iii) Ex. P.3 - Original label used by the defendant company
(iv) Ex. P.4 - Copies of the trade mark registration certificates (series) and legal use certificates of the plaintiffs
(v) Ex.P.5- Photocopy of certificate of incorporation of Nazareth Food Pvt. Ltd
(vi) Ex. P.6 - Photocopies of the Tamil Nadu General Sales Tax (series) and Central Sales Tax registrations of the plaintiffs
(vii) Ex. P.7 - Photocopy of the Central Sales Tax registration dated 22.12.2006
(viii) Ex. P.8 - Photocopy of License agreement dated 01.04.2007
(ix) Ex. P.9 - Certified copy of the sample advertisement of the plaintiffs published in Ritz Magazine
5. Heard the learned counsel appearing for the plaintiffs and perused the records.
6. The only question that has to be decided by this Court is whether the plaintiffs are entitled to a decree as prayed for.
7. Learned counsel appearing for the plaintiffs contended that though the plaintiffs Company started their business as early as in 1995, the product of the defendant, viz., ARASI KULAMBU CHILLY MASALA, is available in all the places wherever the plaintiffs "AACHI" preparation of Kulambu Chilly Masala is marketed and the same will create confusion in the minds of the public. According to him, the defendant''s product is inferior in quality and substandard.
8. It is settled law that no man is entitled to represent his goods or business as being the goods or business of another person, whether such representation is made by the use of any mark, name, sign, symbol, device or other means.
9. The term ''deceptively similar'' has been defined in Section 2(d) of the Trade and Merchandise Marks Act, 1958, which reads as follows:-
"a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion".
Section 2(j) defines a "Mark" as including a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof. The word ''trademark'' means in relation to any provision other than Chapter X of the Act, vide Section 2(v):
"................................................................................................
(ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provision of Chapter VIII".
10. To come to a conclusion whether one mark is deceptively similar to another, it would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him.
11. In the instant case, a mere perusal of Exs. P.2 and P.3 would show that the masala powder produced by the plaintiffs and defendant are all packed in 50g packets. Both the covers used by plaintiffs as well as the defendant for packing 50g powder consists of the words "HYGIENICALLY PACKED" at the top in yellow background. Thereafter, the word "ARASI" is printed on a dark red background as found in the plaintiffs'', viz., "AACHI" and below the name, it is written "KULAMBU CHILLY MASALA" and "MIXED MASALA" in white background. Even at the bottom of the China plate, it is printed by the defendant in Tamil (***) as it is found in the plaintiffs'' wrapper. The 50g covers used by the defendant (Ex.P.3) is similar to plaintiffs'' covers (Ex. P.2) and they are almost of similar size.
12. The overall impression one will get, when seeing the covers containing the masala powder separately without the advantage of side by side comparison, is that they are the same. The leading characteristics of the covers used by defendant are the same as those of the covers used by the plaintiffs. When seen separately, the cover used by the defendant (Ex. P.3) looks deceptively similar to that of the cover used by plaintiffs (Ex.P.2). The size, colour, design, background, name and mark are similar and the product marketed is same. Even the ingredients and the preparation method explained in the wrappers are one and the same.
13. It is further seen that the packets of the plaintiffs and the defendant are practically of the same size; the colour scheme of the wrapper is almost the same; and the design on both, though not identical, bears such a close resemblance that one can easily be mistaken for the other. The words "AACHI" in one and "ARASI" on the other occupy a prominent place at the top with red background with a good deal of similarity. Anyone, in my opinion, who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs'' goods, he might easily mistake the defendant''s wrapper for the plaintiffs'' if shown to him some time after he had seen the plaintiffs''. I have, therefore, no doubt that the defendant''s wrapper is deceptively similar to the plaintiffs'' which was registered.
Considering the oral and the documentary evidence, viz., Ex. P.1 to Ex. P.9 adduced by P.W.1, this Court is of the view that the Plaintiffs have proved the suit claim against the defendant and hence, the Plaintiffs are entitled for the reliefs against the defendant, as asked for. Accordingly, this Civil Suit is decreed as prayed for with costs.
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