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Sangeetha Caterers and Consultants and Another Vs. S.M. Subbaiah trading as Selvalakshmi and Others - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCS.No. 1110 of 2010
Judge
AppellantSangeetha Caterers and Consultants and Another
RespondentS.M. Subbaiah trading as Selvalakshmi and Others
Excerpt:
.....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.....
Judgment:

1. This civil suit has been filed to pass a judgement 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 proof affidavit for his chief examination on behalf of the Plaintiffs and receipt of 4 documents. In the Exparte Evidence, the 2nd plaintiff had examined himself as PW.1 and marked Exs.P1 to P4 as documentary evidence.

5. In this civil suit, the Plaintiff had sought for the reliefs (a) and (b), relating to infringement and passing off the trademark of the Plaintiffs by the Defendants. The Plaintiff has also sought for the relief (c) for surrender of the materials for destruction by the Defendants. In this regard, apart from the fact that the Defendants did not let in evidence whatsoever and remained exparte, this court finds that there are valid evidence, both oral and documentary, adduced by the Plaintiff. Therefore, taking into consideration the materials on record and there was also payment of court fee by the Plaintiffs, this Court is of the view that only the reliefs (a), (b) and (c) as prayed for by the Plaintiff can be granted along with costs.

6. In so far as the relief (d), namely, to pass a judgement and decree, directing the Defendants to render accounts of profits made by the Defendants on account of the usage of the trademark of the Plaintiffs by the Defendants is concerned, though for non filing of the written statement, the Defendants had been set exparte, which resulted in recording of the exparte evidence, in order to sustain such a claim for rendering of accounts of profits, there should be valid evidence on the side of the Plaintiffs, but, on a perusal of the oral and documentary adduced by the Plaintiffs, this court finds no valid evidence both oral and documentary to show that the Plaintiffs had sustained loss of profit because of the use of the trademark of the Plaintiffs by the Defendants. Further, it had also been reported by the learned counsel for the Defendant that the Defendants had closed down the business and are not available at the premises. The Plaintiff also did not produce any evidence to show that the Defendant had unlawfully gained against the Plaintiff. Therefore, in the absence of any evidence, showing that the Plaintiffs have directly suffered and incurred business loss owing to the usage of the trademark of the Plaintiffs by the Defendants, this court holds that the relief (d) sought for by the Plaintiffs for a direction to render accounts of profits would not lie and accordingly, the same cannot be granted.

7. In the result, considering the oral and documentary evidence, viz. Ex.P1 to Ex.P4 adduced by PW.1, this Court is of the view that the Plaintiff has proved the suit claim only in respect of the reliefs (a), (b) and (c) and that the Plaintiff has failed to prove the relief (d) by letting in legally acceptable oral and documentary evidence. Accordingly, this civil suit is decreed only in respect of the reliefs (a), (b) and (c) with costs. In so far as the relief (d) is concerned, this civil suit is dismissed.


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