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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
S. Sudhakar & Another - Appellant
Versus
Priya Krishnakumar, Proprietor, UDAYA MASALA, Coimbatore, Tamil Nadu & Another - Respondent
Civil Suit (Commercial Division) No. 324 of 2017
Decided On : 01-12-2021
Trade Marks Act, 1999 - Section 27, 35 , 134 and 135 - Copy Rights Act, 1957 - Section 51, 2 (c) , 2 (m) , 14 , 55, 58 and 62 - Civil Procedure Code, 1908 - Order 7 Rule 1 - Injunction restraining the defendants - Importing either directly and/or indirectly any goods and in particular any Masala Powders - Injunction restraining the defendants, their distributors, stockiest, servants, agents, retailers, representatives, sister concerns, affiliates or any other person claiming under/through them from in any manner infringing plaintiffs registered trademark ‘UDHAIYAM’ - Mark/device/logo/artistic work of sunrays by hosting websites/web pages, manufacturing, selling, offering for sale, stocking, advertising, exporting, importing either directly and/or indirectly any goods and in particular any Masala powders or other food products under the trademark ‘UDAYA’ - Mark/device/logo/artistic work of sunrays as shown in plaint document No.12 either per-se or in combination and/or any other mark/device either in English or Tamil or any other language – Held, Permanent injunction, restraining Defendant, his servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using same or similar label, get up, and colour scheme used by Defendant or in relation and various types of rice, sugar and masala powders under the Trade Mark udahyam nor use same pouches, packets “IMAGE - Restraining Defendant, his servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using same or similar get up, and colour scheme used by the Defendant or by using any other trade mark which is in any way visually or deceptively similar to the Plaintiffs’ trade mark “UDHAYAM” label in relation spices etc and various types of rice, sugar and masala powders or any other goods or use the mark in invoices - Direction for directing the Defendants to surrender to Plaintiffs all the packing material, cartons, advertisement materials and hoardings, letter-heads, visiting cards - Suit is allowed.
JUDGMENT :
(Prayer: Civil Suit has been filed under Order IV, Rule 1 O.S.Rules read with Order 7 Rule 1 CPC read with Section 27, 134 and 135 of the Trade Marks Act, 1999 and Section 51, 55, 58 and 62 of the Copy Rights Act, 1957, praying to pass a judgment and decree for:-
(a) A Perpetual injunction restraining the defendants, their distributors, stockiest, servants, agents, retailers, representatives, sister concerns, affiliates or any other person claiming under/through them from in any manner infringing the plaintiffs registered trademark ‘UDHAIYAM’ and/or the mark/device/logo/artistic work of sunrays by hosting websites/web pages, manufacturing, selling, offering for sale, stocking, advertising, exporting, importing either directly and/or indirectly any goods and in particular any Masala powders or other food products under the trademark ‘UDAYA’ and/or the mark/device/logo/artistic work of sunrays as shown in plaint document No.12 either per-se or in combination and/or any other mark/device either in English or Tamil or any other language, which is idential with and/or deceptively similar to plaintiffs’ registered trademark “UDHAIYAM” and/or the mark/device/logo/artistic work of sunrays or in any other manner whatsoever.
(b) A perpetual injunction restraining the defendants, their distributors, stockiest, servants, agents, retailers, representatives, sister concerns, affiliates or any other person claiming under/through them from in any manner hosting websites/webpages, manufacturing, selling, offering for sale, stocking, advertising, exporting, importing either directly and/or indirectly any goods and in particular any Masala Powders or other food products using the trade mark ‘UDAYA’ and/or the mark/device/logo/artistic work of sunrays, as contained in Plaint Document No.12, either per-se or in combination with any other mark/device/logo/artistic work either in English or Tamil or any other language which is identical with or deceptively similar to the plaintiffs trademark ‘UDHAIYAM’ and/or the plaintiff’s mark/device/logo/artistic work of Sunrays so as to pass off the defendants products as and for the products of the plaintiffs or in any other manner whatsoever connected with the plaintiff.
(c) A perpetual injunction restraining the defendants, their distributors, stockiest, servants, agents, retailers, representatives, sister concerns, affiliates or any other person claiming under/through them from in any manner committing acts of copyright infringement by printing, stocking, manufacturing, selling, offering for sale, stocking, advertising directly or indirectly, any goods, and in particular any masala powders or other food products, under the mark/label/device/logo/artistic work of sunrays, as contained in plaint document No.9, or any other mark/label/device/logo/artistic work of sunrays, which is identical with or deceptively similar to the plaintiffs’ mark/label/device/logo/artistic work as contained in Plaint Document NO.9 or in any other manner whatsoever;
(d) A perpetual injunction restraining the 1st defendant from using the name UDAYA MASALA or any other name which is identical with/deceptively similar to the plaintiffs trademark UDHAIYAM as her proprietary concern’s name either in English or Tamil or any other language.
(e) The defendants be ordered to surrender to plaintiffs for destruction all packed goods, label, dyes, blocks, moulds, screen prints, packing materials and other materials bearing the trademark ‘UDAYA MASALA’ and/or the mark/label/device/logo/artistic of sunrays either in English or Tamil or any other language.
(f) A preliminary decree be passed in favour of the plaintiffs directing the defendants to render account of profits made by use of trademark ‘UDAYA MASALA’ and/or the mark/label/device/logo/artistic of sun rays either per-se or in combination and/or any other mark either in English or Tamil or any other language and a final decree be passed in favour of the plaintiffs for the amount of prof
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