JUDGMENT - S.C. PRATAP, J.:---The petitioner-plaintiff herein filed Regular Civil Suit No. 2 of 1982 in the District Court, Aurangabad, inter alia for declaration that the defendant is not entitled to use or copy the trade name and the copy right of he plaintiff firm 'Azeem Gadi Ghar' in any manner and for permanent injunction restraining the defendant not to use or carry on business in the said name. A claim by way of damages was also made.

2. The plaintiff had earlier filed Regular Civil Suit No. 144 of 1981 in the Court of the Civil Judge, (Junior Division), Aurangabad, for virtually the same reliefs aforesaid. The defendant, however, challenged the jurisdiction of that Court to entertain and try the said suit, which was in the nature of a passing off action, contending that, in view of section 105(c) of the Trade and Merchandise Marks Act, 1958 (for short 'the Act'), such action would lie only in the District Court. The Court observed that the point of jurisdiction would be considered by framing an appropriate issue in the suit. In the meanwhile and possible because of the defendant's objection of jurisdiction the plaintiff filed the present suit in the District Court. (The earlier suit in the Court of Civil Judge, (Junior Division,) was withdrawn. The learned Assistant Judge, however, by his presently impugned order of 27th September, 1982 held that the District Court had no jurisdiction to try this suit. Hence this revision.

3. The sole and singular question thus arising for determination is one of jurisdiction and the same turns on what constitutes passing off under section 105(c) of the Act.

4. Advertising then first to the relevant provisions of the Act. Under section 105(c) of the said Act no suit :---

"(c) for passing off arising out the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered;

shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit"

The term 'deceptively similar' is defined in section 2(d) of the said Act as---

"A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion."

The word 'mark' is defined in section 2(j) of the Act to include---

"a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof;

The term 'trade mark' is defined in section 2(v) of the Act as under :

"(i) in relation to Chapter X (other than section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and

(ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII;"

5. There is no magic in the term 'trade mark'. Statutory definitions already referred to indicate that even a 'mark' which includes even a name, can, by the very nature of its use, acquire the quality or character of a trade mark. The very definition of 'trade mark' includes 'mark' and the very definition of 'mark' includes 'name'. The term 'trade mark' in section 105(c) of the Act must, therefore, be considered to be a comprehensive term including within itself 'trade name' as also 'mark', 'business name' as also 'name' under which articles, goods, etc. are sold. What is necessary is connection or nexus between the mark used in relation to the goods and the person claiming a right to use the same. That is the clear prop

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