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2017 Supreme(Del) 4664
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
Bajaj Resources Limited & Anr. - Plaintiffs
Versus
Goyal Herbals Private Limited & Ors. - Defendants
CS (COMM) No. 1564 of 2016
Decided On : 24-11-2017
Advocate Appeared:
For the Plaintiffs : Mr. J. Sai Deepak, Mr. Piyush Kumar, Mr. Vardaan Anand
For the Defendants : Mr. Jaspreet Singh Kapur, Mr. Rahul Kukreja
The court emphasized that the amendment adding new paragraphs related to territorial jurisdiction was permissible as it added an additional cause of action and an additional plaintiff.
Headnote:
Trademark Infringement - Territorial Jurisdiction - Trade Marks Act, 1999, Copyright Act, 1962 - Section 134 of the Trade Marks Act, 1999, Section 62 of the Copyright Act, 1962
Fact of the Case:
The suit involves a claim of trademark infringement, passing off, dilution, unfair competition, and damages. Plaintiff no.1 owns the trademark, and plaintiff no.2 is a licensee for the trademark. The defendants are accused of selling products with a similar trademark, leading to the disputes.
Finding of the Court:
The court allowed the plaintiff to amend the plaint to add new paragraphs related to territorial jurisdiction, as it was deemed to add an additional cause of action and an additional plaintiff. The court did not examine the truth and falsity of the factual averments at this stage.
Issues: The main issue was the territorial jurisdiction of the court based on the existing plaint and the application for amendment of the plaint.
Ratio Decidendi: The court held that the existing suit could continue with respect to plaintiff no.1, despite the absence of territorial jurisdiction for plaintiff no.2, as one cause of action and relief claimed by plaintiff no.1 pertained to infringement of the trademark, over which the court had territorial jurisdiction.
Final Decision: The application for amendment of the plaint was allowed, and the application under Order VII Rule 10 CPC filed by the defendants was rendered infructuous and disposed of.
Valmiki J. Mehta, J.
IA No.8739/2017 (u/O. VI R.17 CPC filed by plaintiff) and IA No.9810/2017 (u/O.VII R.10 CPC filed by defendants)
1.(i) This is a suit filed by two plaintiffs. Plaintiff no.1 is Bajaj Resources Limited. Plaintiff no.2 is Bajaj Corporation Limited. The subject suit is a suit for infringement of the trademark, passing off, dilution, unfair competition and damages etc. Plaintiff no.1 is the owner of the subject trademark. Plaintiff no.2 is a licensee for user of the trademark.
(ii) There are five defendants in the suit. Defendant no.1 is a company M/s. Goyal Herbals Private Limited. Defendant no.1 is marketing the impugned products which are manufactured by the defendant no.4 M/s. Gaurav Herbal Udyog. Defendant nos. 2, 3 and 5 are also the selling agents of the products being manufactured by the defendant no.4.
2. The disputes between the parties pertain to the claim of the plaintiffs that there is infringement by the defendants of the plaintiff’s trademark. The subject trademark is a composite trademark in the form of a shape of bottle with its label containing the word mark Bajaj Almond Drops along with the trade-dress as a whole containing the word mark Bajaj Almond Drops. Almond hair oil is sold by the plaintiffs. The disputes arise on account of the claim of the plaintiffs that the defendants are selling almond hair oil in bottles with a label containing the word mark Balaji Almond Drops and which act of the defendants is pleaded to violate legal rights of the plaintiffs in its trademark.
3. In the present/existing plaint, the paragraphs with respect to cause of action pleaded with respect to territorial jurisdiction is para 56 and this para 56 reads as under:-
“That this Court has necessary territorial jurisdiction to entertain and try the present suit under Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act, 1962 as the plaintiff No.1 has its registered office within the jurisdiction of this Hon’ble Court and also carries on business and/or works for gain within the territorial jurisdiction of the Hon’ble Court. In view of above, this Hon’ble Court has jurisdiction to try, entertain and dispose of the present suit.”
4. Therefore the plaint as it stands on date when the application for amendment of the plaint was filed by the plaintiff, the plaintiff claimed existence of territorial jurisdiction of this Court as per Section 134 of the Trademark Act and Section 62 of the Copyright Act on account of plaintiff No.1 carrying on business at Delhi. The suit therefore was filed not on the basis of arising of cause of action wholly or in part as per Section 20(c) CPC, but only on account of Sections 20(a) and (b) CPC read with Section 134 of the Trademark Act and Section 62 of the Copyright Act viz pertaining to the residence and carrying on of the business of the plaintiff no.1 company at Delhi.
5. The defendants have filed the subject application under Order VII Rule 10 CPC for return of the plaint by pleading that neither of the defendants as per the plaint and memo of parties are stated to be carrying on business in Delhi and therefore this Court would not have territorial jurisdiction because the ingredients of Section 20(c) CPC do not exist in the existing para 56 of the plaint. The defendants then plead that the plaintiff no.2 company has its branch office at Varanasi and consequently in accordance with the ratio of the judgment of the Supreme Court in the case of Indian Performing Rights Society Limited vs. Sanjay Dalia and Another (2015) 10 SCC 161 the Courts at Varanasi, U.P. would have territorial jurisdiction.
6. It is seen that as per the existing plaint so far as the plaintiff no.2 is concerned, its rights are asserted as per the reliefs claimed in the suit on account of plaintiff no.2 company being a licensee of the plaintiff no.1. Plaintiff no.2 however does not have as per the memo of parties any office at Delhi and the address of the plaintiff no.2 as per the memo of
