The court emphasized that the plaintiff's ownership of the registered trademark and the sale of the defendant's goods in Delhi established the plaintiff's cause of action and the court's territorial jurisdiction.

I.A. 18308/2013 (O VII R 11 (a) (b) & (d) CPC)

1. Vide this application, the defendant has sought the dismissal of the suit alleging that since the plaintiff is not the registered owner of the trademark TOPS, his suit for infringement of the trademark is not maintainable. It is submitted that the plaintiff’s claim that it is an assignee is not maintainable, as in view of Section 45 of the Trade Marks Act, 1999, an assignee does not become the owner of a trademark unless it is registered in his name and his name is entered into the register. It is further submitted that the assignment could be only by a registered document and the plaintiff has not made any contention that any such document was issued to him by the owner of the trademark nor he has placed on record any document to support his claim of an assignee. It is further contended that the defendant is a Chennai based company and is not doing any business in Delhi and, therefore, this Court has no territorial jurisdiction. It is further submitted that since the plaintiff is not a registered owner of the trademark and since he cannot file a suit for infringement of his trademark, Section 134 of Trade Marks Act, 1999 has no relevance and the jurisdiction of the Court has to be ascertained under Section 20 of the Civil Procedure Code (hereinafter referred to as ‘the CPC’) which requires that a suit can be filed only where the defendant is carrying on its business or working for gain or actually or voluntarily residing or where a cause of action has arisen. It is further contented that as per the plaintiff’s own contention in the plaint, the defendant is Chennai based and the plaintiff has not averred that the defendant is carrying on any business activity in Delhi and merely because the plaintiff has averred that the defendant has the intention to sell its goods in Delhi, this bald averment is not sufficient to give jurisdiction to the Delhi Courts. It is further submitted that the plaintiff has also sought relief of passing off of the goods by the defendant, but it is also a fact that the defendant is not doing any business in Delhi and the plaintiff’s apprehension that the defendant is likely to sell its product in Delhi, is not sufficient to constitute cause of action for a suit of passing off and also does not confer jurisdiction on this Court to entertain a suit for passing off. It is submitted that in para 7 of the plaint, the plaintiff has given the details of the applications filed for the registration of trademark TOPS in various classes which also discloses that the application bearing No.751963 filed on 20.01.1997 for class 30 was still pending and no registration qua that application has been issued. Also, the registration certificates filed by the plaintiff-company shows that the applications were filed in the year 2002 for the products mentioned therein and no registration certificate has been issued by the authorities till 2005. It is also stated in the plaint that the plaintiff had opposed few applications filed by M/s Kenwel Foods Pvt. Ltd. for grant of registration under Section 18 of the Act, therefore, the plaintiff had the knowledge that the predecessor of the defendant-company and the defendant-company are using the trademark TOPPS continuously uninterruptedly since 1986, but this information was suppressed and a frivolous suit has been filed making false and scandalous statements that they were using the trademark TOPS since 1984. It is further submitted that the averments made in para 17 of the plaint that the plaintiff came to know of the use of trademark TOPPS by the defendant in the second week of April, 2013 is also a false statement. It is submitted that a false averment is also made in the plaint that the plaintiff came to know of the applications No.2403780 and 2403781 of the defendant for registration of their trademark in class 29 and