BEFORE THE HON’BLE DISTRICT COURT, PATHANAMTHITTA

O.S. No. of 2018

M/s. J.S.F Holdings Pvt Ltd .……. Plaintiff

Vs.

M/s. Kadavil Aqua Tech and other …….. Defendants

PLAINT PRESENTED UNDER SECTION 26 R/W ORDER VII RULE 1 OF THE

CODE OF CIVIL PROCEDURE AND SECTIONS 28, 29, 134 &135 OF TRADE
MARKS ACT, 1999

PLAINTIFF:

M/s. J.S.F Holdings Private Limited, Plot No.6-A, 1 Phase, Industrial Area,
Kumbalgode, Bangalore – 560060, Karnataka, rep. by its General Manager Hashim.B,
S/o, Basheer, aged 43 years.

Address for service:, Sasi Philip, Advocate, Pathanamthitta and also Abraham
Cherian.P, and K.U.Paulose, Advocates, CC-66/1985, Kallath Apartments, Mathai
Manjuran Road, Kochi-682 018.

DEFENDANTS:

1. M/s.Kadavil Aqua Tech, Thumpamon North, Chenneerkkara P.O, Pathanamthitta,

Kerala Pincode-689 503, represented by its Proprietor, Mr.Alexander Cherian

2. Mr. Alexander Cherian, aged about 67 years, father name not known, Vazhathottathil
House, Indira Nagar, Thumpamon North, Chenneerkkara PO, Pathanamthitta, Kerala,
Pin code-689503

All processes and notices to the Defendants may be served on them at the address given
above or on their counsel if they choose to engage any.

The plaintiff most respectfully submits as under:

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1. The suit is for a decree of permanent prohibitory injunction restraining

defendants from infringing the registered trademark LAZZA of the plaintiff by using

the trademark LASSA and/or LASSAI and restraining them from passing off their

goods as that of the plaintiff by adopting and using the trademark LASSA and/or

LASSAI and for accounts of profit.

2. The plaintiff is a company incorporated under Companies Act, 1956

having its registered office at Plot No 6-A, 1st Phase, Industrial Area, Kumbalgode,

Bangalore, Pin code-560 060, Karnataka, represented by its General Manager,

Hashim.B and he is duly authorized to sign, verify and institute this suit on behalf of the

plaintiff company.

3. That the 2nd defendant appears to be the proprietor of the 1st defendant

and is engaged in business of manufacturing and selling packaged drinking water. It is

verily stated that the exact nature of constitution of the 1 st defendant is not known to the

plaintiff and can only be discovered at the time of discovery. The plaintiff reserves the

right to amend the suit upon such discovery.

4. That the plaintiff belongs to JSF group of companies established by the

late M.C.John in the year 1972. The JSF business group comprises of 30 numbers of

companies owned and managed by lineal descendants of M.C.John inter alia engaged in

the business of manufacture and sale of ice creams, frozen desserts, non alcoholic

beverages and syrups [hereinafter referred to as said goods] in India and various foreign

countries.

5. That the said goods of the plaintiff are manufactured and sold under the

well-known trademarks such as LAZZA, UNCLE JOHN, SKEI, I & U and SKOL

registered in the name of the plaintiff. In order to cater the varying needs of each

geographical area and timely delivery, the said goods is manufactured and sold also

through the franchisees of the plaintiff located at different parts of the country.

6. That the trademark LAZZA is a fancy word, first adopted by M/s. Teejan

Foods Pvt Ltd, a company promoted by M.C.John and his family members and forms

part of JSF group of companies. The said M/s.Teejan Foods Pvt Ltd, for the better
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management of intellectual property transferred the trademark LAZZA to the plaintiff

and thus plaintiff has become the subsequent proprietor of the mark. The trademark

LAZZA has been used since the year 1990 in relation to said goods by the plaintiff and

the predecessor in title of the mark, in such a manner that the word LAZZA has become

distinctive of and in relation to the said goods. The trademark LAZZA is ranked as one

of the most popular brands in India with regard to the said goods.

7. That the said goods manufactured and marketed under the trademark

LAZZA have been an epitome of high quality and standard since the time of its launch

and as a result the said goods under the trademark LAZZA is very popular among the

public. The said goods under the trademark LAZZA has garnered voluminous and

impressive sales running into several billions of rupees, which translates into enormous

goodwill and reputation amongst the members of the trade and the public. The annual

turnover of the said goods under the trademark LAZZA exceeds 100 crore rupees.

8. That the said goods under the trademark LAZZA has been extensively

advertised and promoted through print and visual media having widespread reach and

circulation; mailers; newsletters; social media; websites; trade shows and seminars.

Thus, the knowledge and awareness about the trademark LAZZA as being well known

in the industry within India is a foregoing conclusion.

9. That trademark LAZZA is registered in the name of the plaintiff in India

under the Trade Marks Act, 1999 and the details of the same is given below:

Trademark No. Date Class Goods and services

565927 21.01.1992 30 Ice Cream

731013 08.11.1996 30 Ice cream, ice cream mix, ice
cream cones, ice cream powder,
flour preparations and spices.
713002 09.08.1996 32 preparations for making
beverages (both aerated and non-
aerated and non-alcoholic), fruit
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juices, and mineral water all

being goods included in class 32.
2586269 27.08.2013 30 Ice cream and frozen desserts
2632835 25.11.2013 30 Ice cream and frozen desserts
2955275 28.04.2015 30 Ice cream and frozen desserts
2553632 24.06.2013 35 & retail, wholesale and marketing
43 services related to sale of ice
creams, frozen desserts, dairy
products, and ice lollies and ice
cream parlours restaurant and
kiosks featuring ice creams and
desserts
2553630 24.06.2013 9 Automatic vending machines and
mechanism for coin operated
apparatus, apparatus for
recording, reproduction or
transmission of sounds or images,
and magnetic data carrier
2308957 02.04.2012 29 jams, jellies, fruit preserves, dried
tinned preserved fruits, potato
chips, vegetable preserves,
sausages, milk and dairy
products, yogurts, preserves,
pickles, edible oils
2553631 24.06.2013 28 & games and playthings and
41 entertaining, sporting and cultural
activities

10. That in view of the above registrations, the plaintiff has the exclusive

right to use the trademark LAZZA and the law forbids the use by any other person of

any mark which is identical with or deceptively similar to it.

11. That on account of long, exclusive and extensive use coupled with wide

spread voluminous sales, promotion activities and long presence, the trademark LAZZA

has acquired enviable goodwill and impeccable trade reputation among the public and

trade. The trademark LAZZA has widespread recognition across the country. The

trademark LAZZA have come to exclusively identified and associated with the goods of
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the plaintiff amongst the public and trade circles and the same qualifies itself to be

accorded the status of a well known mark under the provisions of Section 2[1] [zg] of

the Trademarks Act, 1999. The plaintiff’s trademark LAZZA has become synonymous

with the said goods of the plaintiff and has become a distinctive indica and a source of

distinct identification with the plaintiff. It has become an asset of immense value to the

plaintiff in their business.

12. That the plaintiff has acquired legal, vested and statutory and common

law rights to the exclusive use of the trademark LAZZA on account of its registration,

long exclusive and extensive use. Therefore use of an identical and/or deceptively

similar trademark by any other person is bound to be considered by the public and the

trade, as use by the plaintiff or associated with plaintiff in one or the other manner.

13. That the plaintiff and the predecessor in title of the mark have been

extremely vigilant in protecting the intellectual property rights in the trademark LAZZA

and have initiated infringement and passing action before the court of law and

successfully restrained third parties from using the trademark LAZZA and deceptively

similar trademarks such as LALZ, ZAALA, THAZZA and LALZA.

14. That while so on 25-06-2016 the plaintiff came across the advertisement

appeared in the Trademark Journal No.1748-0 dated 06-06-2016 published by

Trademark Registry, inviting objections from the public against the application

No.3026159 in class 32 in the name of the 2 nd defendant for the registration of

trademark LASSA which is deceptively similar to the well known mark LAZZA of the

plaintiff, in respect of waters [beverages], aerated waters, fruit juices, packaged drinking

water. The plaintiff theron immediately filed notice of opposition against the said

application under Section 21 of the Trade Marks Act, 1999 and the Registrar of

Trademarks allowed the notice of opposition and abandoned the applicantion of the 2 nd

defendant by its order dated 27-02-2017. Therafter on 15-07-2017, the sales executive

of the plaintiff came across the sale of packaged drinking water of the defendant made

avaiable in the market and accordingly the plaintiff issued a legal notice dated 21-07-

2017, requiring the defendant to cease and desisit with the use of the mark LASSA. The
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2nd defendant replied to the said legal notice through his advacate vide letter dated 04-

08-2017 stating that the defendants have ceased with the use of the mark LASSA with

effect from 13-07-2017. However, on 15-11-2017 the sales executive of the plaintiff

came across the package drinking water of the defendnats under the trademark LASSA

resurfacing in the market. The plaintiff thereon lodged a complaint with Deputy

Superindent of Police, Pathanathitta, but not pursued the complaint further as the

defendants assured to cease with sale of packaged drinking water under the mark

LASSA and accordingly withdraw their packaged drinking water under the mark

LASSA from the market.

15. That on 30-11-2017 the plaintiff again came across an application for

registration filed by the defendants, this time which is for the trademark LASSAI under

application No.3600402 with a claim of proposed to be used. The plaintiff thereon

immediately filed Notice of Opposition before the Trademark Registry against the said

application and the same is numbered as Opposition No.908531. On coming across the

advertisement of the impugned mark in the Trademark Journal and thereafter the

plaintiff through its executives enquired about the goods alleged to be sold by the

defendants under the trademark LASSAI, but no such goods was available in the

market.

16. That recently on 25-07-2018, it has come to the knowledge of the

plaintiff through its sales executives that the defendants have started manufacturing and

selling packaged drinking water under the trademark LASSAI in and around

Pathanamthitta. The malafides of the defendants are writ large as the defendants have

deliberately chosen a name LASSA and/or LASSAI so as to come closer to plaintiff’s

well known mark LAZZA, with a view to trade upon and benefit from the hard earned

reputation of the plaintiff. The defendants have derived the mark LASSA and/or

LASSAI by just replacing the letter ‘Z’ in the mark LAZZA with the letter ‘S’ and

adding letter ‘I’. There is only negligible difference between the marks and by no

stretch of imagination can the adoption of such a phonetically, visually and structurally

similar trade mark by the defendants be said to be honest. It is submitted that the
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aforesaid is nothing but a deliberate attempt to pass off their goods and business as that

of the plaintiff’s and is clear and unequivocal attempt to deceive and mislead innocent

consumers and members of trade/public.

17. That by assuring to cease with the sale of the goods under the mark

LASSA and accordingly withdrawing the goods under the mark LASSA from the

market, the defendants themselves admits the fact that the mark LASSA is closely

similar to the well known mark LAZZA and use of the same by the defendants will

cause confusion and deception to the public. It is further submitted that the mere

addition of letter ‘I’ to the mark LASSA of the defendants will not make the mark

LASSAI distinct and different to the well known mark LAZZA. After abandoning the

mark LASSA, the defendants are barred from contending that they adopted the mark

LASSAI honestly or bonafidely.

18. That the goods sold by the defendants under the trademark LASSA

and/or LASSAI are also similar and are of same description as provided by the plaintiff.

The goods of the plaintiff and defendants sold at same shops, across the counters, to the

same class of customers, to distributed by same marketing channels, and thus the goods

manufactured by the defendants are likely to be mistaken by the members of the trade

and public, as another product in the series by the plaintiff, in its own range of product.

The effect, idea and impression of the defendant’s impugned mark is such that it can be

easily mistaken as and for plaintiff’s trademark and is likely to cause confusion and

deception amongst the members of the public and the trade. The plaintiff is much prior

in point of time to adopt, use and register the said trademark LAZZA. Hence, there is

bound to be confusion and deception among the public and trade by use of such

deceptively similar trademark by the defendants.

19. That it is apparent that the defendants adopted the trademark LASSA

and/or LASSAI with ulterior motives to divert and encash upon the hard earned

reputation and goodwill developed by the plaintiff in and around the trademark LAZZA

over the past two decades. The manufacturing and distribution of goods bearing the

trademark LASSA and/or LASSAI by the defendants is calculated to injure the business
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and/or goodwill of the trademark LAZZA of the plaintiff. It is not only the plaintiff but

also the purchasing public at large which is likely to suffer on account of the illegal

trade activities of the defendants as they are likely to be deceived and mislead into

buying the inferior goods manufactured by the defendants. The purchasers and

intending purchasers of the said goods include an unwary class of purchasers, who

demand and recognize goods of the plaintiff by the trademark LAZZA. The confusion

and deception among the public and trade is inevitable due to the deceptive similarity of

the impugned trademark LASSA and/or LASSAI with plaintiff’s well known and

registered trademark LAZZA.

20. The defendants have created the trademark LASSA and/or LASSAI and

misrepresenting their goods as that of the plaintiff. The defendants are not entitled to

use the trademark LASSA and/or LASSAI or any other mark deceptively similar to the

trademark LAZZA and to pass off their goods as that of the plaintiff. It is submitted that

the goodwill and reputation of the trademark LAZZA of the plaintiff has been

established painstakingly at great expense. It has taken decades to establish the said

reputation amongst the public and trade who are accustomed and expect each and every

product and/or services of the plaintiff to be highest quality. It is also resulting in unfair

competition where in the defendants without making any effort or investment is selling

their products and making profits, by virtue of using the impugned trade mark. Public

interest is also being put into jeopardy. The act of manufacturing and distributing

products under the trademark LASSA and/or LASSAI which is closely similar to the

trademark LAZZA by the defendants amounts to infringement of trademark under

Section 29 of the Trademarks Act, 1999.

21. The plaintiff has suffered and is likely to suffer irreparable loss and

injury, and monetary compensation alone would not be sufficient to redress the

continuing harm resulting from the acts of infringement and passing off being

committed by the defendants. The irreparable harm and injury consist in damage and

dilution being caused to the plaintiff’s exclusive property and its goodwill in trademark

LAZZA.
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22. It is imperative that the defendants by themselves, their servants, agents,

distributors, stockiest representatives and /or all persons claiming under them or acting

in concert with them or otherwise howsoever be restrained by a decree of permanent

prohibitory injunction of this Hon’ble Court from in any manner using the trademark

LASSA and/or LASSAI or any other trademarks deceptively similar to the registered

trademark LAZZA of the plaintiff or in any manner passing off or enabling others to

pass off the defendant’s goods as and for the goods of the plaintiff by use of the mark

LASSA and/or LASSAI or any other marks similar to the trademark LAZZA, hence

this suit.

23. That the cause of action for the suit arose on 15-07-2017 when plaintiff

came to know about the goods of the defendants under the mark LASSA, on 21-07-

2017 when the plaintiff issued notice through its advocates, on 04-08-2017 when the

defendants informed the plaintiff through their reply notice that they have ceased with

the use of the mark LASSA on 13-07-2017, and on 25-07-2018 when the plaintiff

became aware through its executives that defendants are manufacturing and distributing

packaged drinking water, under the trademark LASSAI which is deceptively similar to

the trademark of the plaintiff. The cause of action is a continuing one and continues to

accrue each day the defendants carry on with their unlawful acts explained above.

24. This Hon’ble Court has jurisdiction to entertain the suit under Section

134 of the Trademarks Act, 1999 read with Section 20 of Civil Procedure Code as the

defendants carry on their business at Thumpamon North, Chenneerkkara,

Pathanamthitta situated within the territorial jurisdiction of this Hon’ble Court.

25. The suit is valued for the reliefs of permanent prohibitory injunction at

Rs.500-00 each against infringement and passing off of the trade mark. The plaintiff is

entitled to claim the account of profits from the defendants for the aforesaid acts of

infringement and passing off. The plaintiff estimates/expects that they will be entitled to

a sum in excess of Rs.50,000-00. However, the plaintiff provisionally values the relief

of the sum for the purpose of court fee at Rs. 50,000-00 and the requisite court fee is

paid. The plaintiff undertakes to pay any deficiency in the court fee as may be found in
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the event of this Hon’ble Court awarding a sum in excess of Rs.50,000-00 after the

defendants have rendered accounts.

Hence it is prayed that this Hon’ble Court may be pleased to grant the following

reliefs:

A. Issue a decree of PERMANENT PROHIBITORY INJUNCTION

restraining the defendants their successors in business, servants, agents, distributors,

stockiest, representatives and/or all persons claiming under them or acting in concert

with them or otherwise from using the trademark LASSA and/or LASSAI and thereby

infringing plaintiff’s registered trademark ‘LAZZA’;

B. Issue a decree of PERMANENT PROHIBITORY INJUNCTION

restraining the defendants their successors in business, servants, agents, distributors,

stockiest, representatives and/or all persons claiming under them from in any manner

using the trademark ‘LASSA and/or LASSAI or any other trademarks deceptively

similar to plaintiff’s trademark LAZZA so as to pass off defendant’s products as that of

the plaintiff or in some way connected with the plaintiff;

C. Pass a decree directing the defendants to render accounts of profits made

by them by use of trade mark LASSA and/or LASSAI and a final decree in favour of

plaintiff company for the amount of profits found to have been made by the defendants

after the latter have rendered accounts;

D. Allowing the costs of the suit to be recovered from the defendants and

their assets;

E. Allowing such other and further relief’s which this Hon’ble Court deems

fit to grant in the circumstances of the case.

VALUATION AND COURT FEE

Value of the relief sought in prayer (A) : Rs.500-00

under Section 27 (b) of the Act 10 of 1960.

Court fee paid thereon : Rs.20-00

Value of the relief sought in prayer (B) under
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Section 27 (c) of the Act 10 of 1960. : Rs.500-00

Court fee paid thereon : Rs.20-00

Value of the relief sought in prayer (C) under : Rs.50,000-00

Section 35 (1) of the Act 10 of 1960.

Court fee to be paid : Rs.3400-00

Court fee paid u/s 4A of the Act 10 of 1960. : Rs.340-00

Total Valuation : Rs.51,000-00

Total court fee payable : Rs.3440-00

Court fee payable under Section 76 of the : Rs.510-00

Act 10 of 1960.
1/10thcourt fee paid herewith : Rs. 395-00

Balance court fee payable : Rs.3,555-00

Dated this the 12th day of August, 2018.

For M/s. JSF Holdings Private Limited

PLAINTIFF:

ADVOCATE FOR THE PLAINTIFF.

VERIFICATION

I, Hashim B, S/o.Basheer, aged 43, residing at 8J-Tower 2, DD Nest, Kaloor,

Ernakulam, Pin code-682017, Ernakulam, the General Manager of plaintiff do hereby

declare that all the facts stated above are true and correct to the best of my knowledge,

information and belief.

Dated this the 12th day of August 2018.

For M/s. JSF Holdings Private Limited

PLAINTIFF: