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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
Sangeetha Caterers and Consultants A Partnership Firm, by its Partner P.Rajagopal
Chennai – Plaintiffs
Versus
S.M. Subbaiah, trading as Selvalakshmi Sangeetha Restaurant and Ors. – Defendants
CS.No.1110 of 2010
Decided On : 18-11-2016
TRADEMARK INFRINGEMENT - RESTAURANT BUSINESS - [TRADEMARKS ACT, 1999, Sections 29, 134] - The court granted permanent injunction restraining the Defendants from infringing the Plaintiff's registered trademark 'APOORVA'S SANGEETHA' and from passing off their products as the Plaintiff's. The court also directed the Defendants to surrender materials bearing the offending trademark and to pay the costs of the suit to the Plaintiff. The Plaintiff's claim for accounts of profits was dismissed due to lack of evidence of business loss.
Fact of the Case:
The Plaintiff, engaged in the restaurant business under the name 'Apoorvas Sangeetha', filed a civil suit against the Defendants for trademark infringement and passing off of their products as the Plaintiff's.
Finding of the Court:
The court found valid evidence of infringement and passing off by the Defendants, granting reliefs (a), (b), and (c) to the Plaintiff. However, the Plaintiff's claim for accounts of profits was dismissed due to lack of evidence of business loss.
Issues: Trademark infringement, passing off, surrender of materials bearing offending trademark, accounts of profits
Ratio Decidendi: The court held that the Plaintiff proved the suit claim only in respect of the reliefs (a), (b), and (c) and failed to prove the relief (d) for accounts of profits due to lack of legally acceptable evidence of business loss.
Final Decision: The civil suit was decreed only in respect of the reliefs (a), (b), and (c) with costs, while the relief (d) for accounts of profits was dismissed.
This civil suit has been filed to pass a judgment and decree, against the Defendants:-
(a) granting a permanent injunction restraining the Defendants from in any manner infringing the Plaintiff's registered trademark 'APOORVA'S SANGEETHA' by using the offending word SANGEETHA either as a trade mark or part of his trading style or any other mark or marks, which are identical and similar to or a colourable imitation of the Plaintiff's registered trademark APOORVA'S SANGEETHA.
(b) granting permanent injunction restraining the Defendants from in any manner passing off of their products bearing the offending word SANGEETHA either as a trade mark or part of their trading style as and for the celebrated products of the Plaintiff bearing the registered trademark APOORVA'S SANGEETHA either by manufacturing or selling or offering for sale or in any manner advertising the same.
(c) directing the Defendants to surrender the name boards, entire stock of unused offending trade mark wrappers, bill books, etc. bearing the offending word SANGEETHA either as a trademark or part of his trading style, together with blocks and dyes for destruction.
(d) directing the Defendants to render and true and faithful accounts of the profits earned by the Defendants through the sale of their products sold by using the word SANGEETHA and directing payment of such profits to the Plaintiff for the passing off committed by the Defendants.
(e) directing the Defendants to pay the costs of the suit to the Plaintiff.
2. The case of the Plaintiff is that the 1st Plaintiff is the Partner of the 1st Plaintiff Firm, namely, Sangeetha Caterers and Consultants, which is engaged in the restaurant business under the name and style of Apoorvas Sangeetha for the past several years. The Plaintiff had conceived and adopted the trademark APOORVAS SANGEETHA for the restaurant business on 10.5.1996. The Plaintiffs had also obtained registration of the said trademark APOORVAS SANGEETHA under Nos.1001714 to 1001718 in classes 32, 30, 16 and 29 respectively. The Plaintiffs have been using the said trademark in their partnership firm, by name, M/s. Sangeetha Enterprises. The sales turn over has been gradually increased from Rs.1,79,21,009.10/- in the year 1996-97 to Rs.6,67,88,267.21/- in the year 2007-2008. On 4.4.2004, the Plaintiff had entered into a franchise agreement with the 1st Defendant, permitting the 1st Defendant to use the said trademark for a period of one year on payment of Rs.1,00,000/- as one time franchise fee. After expiry of the said franchise agreement, the Plaintiffs called upon the Defendants to stop using the said trademark. However, in 2009, the Plaintiffs came to know that the Defendants had started using the word SANGEETHA as a part of their trading style SELVALAKSHMI SANGEETHA RESTAURANT. Since the word SANGEETHA is the essential feature of the trademark of the Plaintiffs, the Defendants have no right whatsoever to adopt the offending trademark SANGEETHA. The adoption of the offending trademark SANGEETHA by the Defendants will create confusion in the market and lead the public to assume that the products of the Defendants emanates from the Plaintiff. If the Defendants are not restrained from infringing the trademark of the Plaintiff, grave hardship and irreparable loss will be caused to the Plaintiff. In such circumstances, this civil suit has been filed for the reliefs as stated above.
3. Though the Defendants were served on 09.08.2010 and 26.07.2016, no written statement has been filed by them and hence, the matter was ordered to be listed under the caption of "Undefended Board". For non filing of the Written Statement, the Defendants were set exparte and Exparte Evidence was ordered to be recorded by the order of this court dated 19.10.2016, on which date, the learned counsel, who appeared for the Defendants, had reported that the Defendants had closed down the business and were not available at the premises.
4. The 2nd Plaintiff had filed the pro
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