1. This is the defendants’ notice of motion to reject the plaint in exercise of powers under order 7 rule 11 of the C.P.C. Mr.Dhond submitted that even assuming that the provision of order 7 rule 11 do not apply, the Court ought to reject the plaint in exercise of powers under section 151 of the C.P.C.

2. The question that falls for consideration is whether the institution of an action for infringement is barred if the defendants’ mark is also registered. I have held it is not.

3. The suit is filed for infringement and passing off. Leave under clause XIV of the Letters Patent has been sought but not obtained as yet. The contention in support of this notice of motion is that as the defendants’ mark is also registered, this Court lacks inherent jurisdiction to entertain or try the suit for infringement. If that is so, the question of granting leave under clause XIV cannot arise.

4. In support of this contention, Mr.Dhond firstly relied upon the following provision of section 29 of the Trade Marks Act, 1999 :-

“29. Infringement of registered trade marks.—(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of—

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which—“ (emphasis supplied)

5. The words in section 29, underlined by me were relied upon in support of the submission. The submission is not well founded. Section 29 enumerates the circumstances in which a registered trade mark is infringed. I will presume that the effect of the underlined words is that even if the other factors exist a mark cannot be said to be infringed by the mark in question if it is registered to wit the act of infringement does not extend to persons whose marks are also registered. Section 29 however does not prohibit the filing of a suit for infringement merely because the defendants’ mark is also registered. The defendants’ mark being registered does not bar the inherent jurisdiction of the Court to try an action for infringement. Section 29 provides a defence to an infringement action but does not bar the filing of the suit. It may well be that the suit would be dismissed or interim reliefs may be rejected on the ground that the defendants’ mark is also registered. That however, is an entirely different matter. It does not affect the inherent jurisdiction of the Court to entertain the action.

6. For the same reasons, section 30(2)(e) also does not bar the filing of a suit for infringement merely because the defendants’ mark is also registered. Section 30(2)(e) reads as under:-

“30. Limits on effect of registered trade mark.—

(2) A registered trade mark is not infringed where— (e) the use of a registered trade mark, being one of two or more trade marks registered under this Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act.”

While section 30(2)(e) provides a defence to an action for infringement it does not bar the institution of a suit for infringement.

7. Mr.Dhond then relied upon section 134 of the Act which reads as under:-

“134. Suit for infringement, etc. to be instituted before District Court.—(1) No suit—

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the