(Prayer: Appeal filed under Order 36 Rule 9 of O.S.Rules r/w Clause 15 of the Letters Patent, 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.)
R. Mahadevan, J.
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:-
(i) The appellants herein are the applicants in O.A.No.118 of 2008 and plaintiffs in the suit in C.S.No.87 of 2008. The respondent herein is the respondent in O.A.No.118 of 2008 and defendant in the suit in C.S.No.87 of 2008. The application in O.A.No.118 of 2008 was filed for grant of interim injunction restraining the respondent from manufacturing, selling, advertising and offering for sale of masala, spices using the trademark AACHI or AARCEE or any other similar sounding expressions, pending disposal of the suit.
(ii) When O.A.No.118 of 2008 came up before this Court on 07.02.2008, originally this Court granted an order of interim injunction restraining the respondent from using the plaintiffs' label in respect of 'Asafoetida Sachet', since there was phonetic and visual similarity. Thereafter an application was filed for vacating the injunction granted by this Court, wherein on 16.04.2008, this Court directed the respondent / defendant to file an affidavit to the effect that he would stop using the trademark 'AARCEE' and 'RC' in the asafoetida packet. Accordingly, on 19.04.2008, an affidavit was filed by the respondent to that effect. But, with regard to other items, it was stated by the respondent in the said affidavit that they would continue to carry on the trade by using the trademark 'Aarcee in MEGA MASALA, The REAL CHOICE', as before.
(iii) On 16.12.2009, the date on which the impugned order was passed, the learned counsel appearing for the applicants/appellants herein prayed for granting interim injunction in respect of other items also. The learned counsel for the appellants, while insisting on the order of injunction being granted for all the other items also, submitted that there is a visual and phonetic similarity in all the other items manufactured and marketed by the respondent under the trademark 'AARCEE'. She also referred to various labels of both the appellants and the respondent in respect of various products to show the similarity. She also submitted that the trademark 'AARCEE' has not been registered in favour of the respondent.
(iv) The learned counsel for the respondent has submitted before this Court that the respondent is manufacturing various spices and masala powders with the trademark 'Aarcee in MEGA MASALA, The REAL CHOICE'. He further submitted that the words 'Megha Masala' has been prominently printed in bigger letters than 'AARCEE'. Apart from that, he submitted that the words 'The REAL CHOICE' are also printed below the words 'MEGHA MASALA' and therefore, according to him, the trademark used by the respondent is clearly distinguishable from that of the appellants / plaintiffs. Thus, he submitted that there cannot be any confusion in the minds of the consumers as alleged by the learned counsel for the appellants. He further denied the statement made by the learned counsel for the appellants that the respondent has not obtained registration of his trademark. In fact, he submitted that the respondent has obtained registration of his trademark 'AARCEE MASALA' and 'Aarcee in Megha Masala' and 'RC Masala' during June, July and December 2007 respectively. He also referred to various labels of the respondent's products to show as to how they are different from that of the appellants' labels. Stating so, the learned counsel submitted that the application has to be dismissed.
(v) After hearing the submissions made on either side and also perusing the materials available on record, this Court dismissed the prayer of the learned counsel for the applicants to grant interim injunction for all the other items, in addition to the one given in respect of asafoetida sachet.
(vi) Challenging the said order passed in O.A.No.118 of 2008, the present appeal is filed.
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.
4. The learned counsel for the appellants relied on the decision of this Court in K.R.C.Chetty v. K.V.Mudaliar, reported in AIR 1974 MADRAS 7, and also the decision of the Hon'ble Supreme Court in K.R.Chinna Krishna Chettiar v. Sri Ambal and Co. and another, reported in AIR 1970 SC 146, in support of her contention.
5. Even though notice has been served and the name of the respondent has also been printed in the cause list, there is no representation on the side of the respondent.
6. This Court heard the submissions made by the learned counsel for the appellants and also perused the materials available on record carefully.
7. On a perusal of the labels of both the appellants and the respondent, it is clear that excepting the asafoetida sachet, the labels of all the other products of the respondent are not similar. In those labels, the words Aarcee in Megha Masala, The Real Choice is printed and the said words Megha Masala is printed in big letters. The trade word is also AARCEE , whereas the words of the appellants is AACHI . With regard to Curry Masala Powder, the background colour of the respondent's label is green, whereas the background colour of the appellants' label is orange. In respect of biriyani masala and lemon rice powder also, besides mentioning the name of Aarcee in Megha Masala, The Real Choice in big letters, the background colours are different. Even though in some of the items, the background colours may resemble to a certain extent with that of the appellants' labels, the same are clearly distinguishable, as we already observed that Aarcee in Megha Masala, The Real Choice is printed on all the labels of the respondent's items and the said words Megha Masala is printed in big letters. Further there is no phonetic or visual similarity in respect of those items.
8. In the decision of this Court in K.R.C.Chetty v. K.V.Mudaliar, reported in AIR 1974 MADRAS 7, which has been relied on by the learned counsel for the appellants, the name of the snuff manufactured by the appellant therein was Radha's Sri Andal and the name of the snuff manufactured by the first respondent therein was Sri Ambal . That appeal was filed against the judgment of this Court in C.M.A.No.58 of 1966 dated 23.07.1971 refusing to register the trademark of the appellant therein. The said appeal was dismissed by this Court observing that the legend Sri Andal is deceptively similar to the existing legend Sri Ambal and the addition of the word Radha to it will not make slightest difference and hence the refusal of the authorities to register the said trademark is justified. Aggrieved over the said judgment, the appellant therein, went on appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court, confirmed the judgment of the High Court and dismissed the appeal holding that there is striking similarity and affinity of sound between the word Andal and Ambal , bearing in mind the conclusions of the learned single Judge and the Division Bench of this Court. The said judgment of the Hon'ble Supreme Court is the second judgment (AIR 1970 SC 146) relied upon by the learned counsel for the appellants. In the present case, since the words Aarcee in Megha Masala, The Real Choice is printed on all the labels of the respondent's items and the said words Megha Masala is printed in big letters and further there is no phonetic or visual similarity in respect of those items, the judgments relied on by the learned counsel for the appellants will not come to the rescue of the appellants.
9. In view of the reasons stated supra, this appeal is liable to be dismissed. Accordingly, the order passed by this Court in O.A.No.118 of 2008 in C.S.No.87 of 2008 dated 16.12.2009 is confirmed and this appeal stands dismissed. No costs.