1994 Supreme(AP) 455
Andhra Pradesh High Court
Judges : P.RAMAKRISHNAM RAJU
Hilton Tobacco Private Ltd. - Appellant
Versus
Souza Cruz S.A. - Respondent
Decided On : 10-06-94
Headnote:Trade & Merchandise Marks Act, 1958 - Section 27(2), 55(1) - Trade Mark - passing off action - Non-registration of trade mark not a bar against initiation of passing-off action - Though no registration of trade mark in India, still suit maintainable.
Held : Court has jurisdiction to entertain the suits as trade mark used on goods manufactured in India meant for export will constitute use also within India, although there is no actual use in India, as per Section 55 (1) of Trade and Merchandise Act, and, therefore, the plaintiffs can invoke the jurisdiction of the Courts.
( 1 ) THE first defendant in O. S. No. 6 of 1994 is the appellant. The first respondent- plaintiff filed the suit for perpetual injunction-restraining the defendants from producing, manufacturing, selling or exporting their goods including cigarettes bearing the mark hollywood , logo and the colour scheme or any other deceptive trade mark and for other reliefs. It has also filed I. A. No. 920 of 1994 under Order 39, Rules 1 and 2 C. P. C. for a temporary injunction, pending the suit. As the said interlocutory application was allowed restrianing the appellant herein and the respondent Nos. 2 to 4 from exporting HOLLYWOOD brand of cigarettes to other countries in which the trade mark of HOLLYWOOD is registered by the plaintiff till the disposal of the suit this appeal. C. M. A. No. l032 of l994:
( 2 ) SIMILARLY, the first defendant in O. S. No. 3 of 1994 is the appellant, against whom an interim injunction was granted in I. A. No. 784 of 1994 restraining the appellant and the second respondent from exporting any brand of cigarettes with Assos/assos International/international Assos, to other countries in which this trade mark is registered by the first respondent-plaintiff, pending the suit. C. M. A. No. l035 of l994:
( 3 ) THIS appeal is filed by the second defendant in O. S. No. 3 of 1994 questioning the order made in LA. No. 784 of 1994. In this appeal also the appellant raised similar contentions as raised by the appellant in C. M. A. No. l032 of l994. C. M. A. No. 1036 of 1994:
( 4 ) THIS appeal is filed by defendant Nos. 2 and 3 in O. S. No. 6 of 1994 questioning the same order made in LA. No. 920 of 1994. C. M. A. No. 1162 of 1994:
( 5 ) THIS appeal is filed by the plaintiff in O. S. No. 6 of 1994 questioning the order made in I. A. No. 920 of 1994 in so far as it went against the appellant i. e. , rejection of some reliefs. C. M. A. No. 1163 of 1994:
( 6 ) THIS appeal is filed by the plaintiff in O. S. No. 3 of 1994. The appellant questions the order made in LA. No. 784 of 1994 in so far as it went against the appellant. C. R. P. No. 2617 of l994:
( 7 ) THE first defendant in O. S. No3 of 1994 is the petitioner herein. It filed LA. No. 987 of 1994 under Order 7, Rule 10, 10-A C. P. G. to determine whether the tower Court has jurisdiction to entertain the suit. As the said application was dismissed, this Civil Revision Petition is filed. C. R. P. No. 2618 of 1994:
( 8 ) THIS Civil Revision Petition is filed by the first defendant in O. S. No. 6 of 1994 questioning an order made in I. A. No. 1132 of 1994 filed by it for rejection of the plaint for presentation in proper Court holding that the lower Court has no jurisdiction to entertain the suit. C. R. P. No. 2619 of 1994:
( 9 ) THE first defendant in O. S. No. 3 of 1994 is the petitioner. The petitioner filed an application requesting the Court to decide whether Mr. Deepak dhingra is an authorised person to sign the plaint on behalf of the plaintiff as its lawful General Power of Attorney Holder or not. As the said application was dismissed, this Civil Revision Petition is filed. C. R. P. No. 2629 of l994:
( 10 ) THE first defendant in O. S. No. 6 of 1994 is the petitioner. It filed an application under Order 3, Rules 1 and 2 C. P. C. to decide whether Mr. Deepak dhingra is an authorised person to sign the plaint on behalf of the plaintiff. As the said application was dismissed, this Civil Revision Petition is filed.
( 11 ) ALTHOUGH the lower Court has disposed of all the applications by two separate orders, as common questions arise, all these appeals and petitions are disposed of by a common order.
( 12 ) THE first respondent in C. M. A. No. 1031 of 1994 is a leading manufacturer of tobacco products including cigarettes which have a world-wide reputation. It is manufacturing cigarettes with the brand name "hollywood" apart from other brands of cigarettes which have market throughout the world. The first respondent has also got its trade mark, brand and