A descriptive trade mark may be entitled to protection if it has assumed a secondary meaning which identifies it with a particular product, but the owner of an unregistered mark cannot claim exclusivity over the word mark embodied therein in English language if the mark is registered in an Indian language.

1. THE plaintiffs claim exclusivity over the label and word mark 'Toofan' in connection with electrical fans. THE plaintiffs have no registration in respect of either. THE plaintiffs have applied for registration of label 'Toofan' which has a distinctive manner of presentation of the word 'Toofan' as "too-FAN; and, the plaintiffs cite the use of the word Toofan' in connection with electrical fans from the year 1987 to suggest that even if the word mark is some what descriptive of the function of the appliance, a secondary meaning has evolved in respect thereof in connection with the plaintiffs' long, exclusive and undisturbed use thereof.

2. GA No.1763 of 2010 is the plaintiffs' interlocutory application in aid of the reliefs claimed in the suit. GA No.1946 of 2010 is the first defendant's application for vacating the ad interim order passed in the plaintiffs' favour. Upon the order passed in favour of the plaintiffs not being vacated at the ad interim stage of the vacating application, the first defendant carried the order in appeal. The appeal was allowed by an order dated August 18, 2010 and the interim order passed in favour of the plaintiffs was vacated. The plaintiffs' interlocutory application and the first defendant's vacating application were directed by the appellate Court order to be taken up upon completion of affidavits. The first defendant has since applied for revocation of the leave granted under Clause 12 of the Letters Patent, by way of GA No.2792 of 2010.

3. IN support of the application challenging the authority of this Court to receive the action, the first defendant says that the second, third and fourth defendants or one or more of them are friendly parties and have been roped in by the plaintiffs for the purpose of carrying this suit to this Court and harassing the first defendant which carries on business in Hyderabad. The first defendant claims that the first defendant has no agent or distributor for its product at any place within jurisdiction or even in this State and the fact that one or more of the first defendant's products were deliberately carried to a shop within jurisdiction for the purpose of founding this suit in this Court, should warrant the leave granted under Clause 12 of the Letters Patent being revoked. The parties have referred to the judgments reported at AIR 1981 PandH 117; 42 PTC 361; 42 PTC 480; and, an unreported judgment of the Delhi High Court rendered on January 27, 2010 in CS(OS) No.1714 of 2001 and IA Nos. 12828 and 15940 of 2009 (Sholay Media Entertainment v. Yogesh Patel).

4. THE principle that the first defendant enunciates is that a solitary unusual sale or a trap order for the purpose of creating territorial jurisdiction of a Court before which the action is brought has always been frowned open. THE first defendant insinuates that the friendly defendants have apparently purchased the fans of the first defendant's manu facture in Raxaul or Patna in Bihar and have carried them to their places of business within jurisdiction, or have issued bills reflecting their addresses within jurisdiction, only to help the plaintiffs in filing the suit in this Court. Upon the defendants' challenge to the authority of this Court to receive the action being filed, the plaintiffs have applied by way of G.A.No.1346 of 2011 for amendment of the plaint. Though such matter does not appear in the list, by consent of the parties such matter is treated as on the day's list and is dealt with in course of this order.

5. WHAT is evident from the plaint and the other material produced by the defendant Nos.2 to 4 in support of the plaintiffs' case is that the second, third and fourth defendants have purchased some electrical fans of the first defendant's manufacture to be sold from their shops within jurisdiction. In course of the amendment application, the plaintiffs also refer to other places within jurisdiction and elsewhere in Calcutta whereat electrical fans of the first defendant's man