The use of a mark in relation to goods or services constitutes a cause of action, and the jurisdiction can be invoked where such use takes place. Each use of a mark constitutes a fresh cause of action.

Prathiba M. Singh, J.

I.A. 17221/2015 (u7/O VII, R.11), I.A. 17220/2015 (u/O VII, R.10) & I.A. 23496/2014 (u/O VII, R.11 on behalf of Defendant No. 7)

1. The Plaintiff has filed the present suit seeking permanent injunction restraining infringement of trademark, passing off, damages, etc. in respect of the trademark ‘Burger King’ and ‘Hungry Jack’s’ both as a trademark as also part of their corporate names. All the Defendants are based out of Mumbai, Maharashtra. The Plaintiff is a U.S. based company. The Defendants have filed the above application seeking rejection of the plaint on the ground of lack of cause of action and lack of territorial jurisdiction.

2. The jurisdiction paragraph in the plaint reads as under:-

“50. This Hon'ble Court has the necessary jurisdiction to entertain and try the present suit for the following reasons:-

(i) Under Section 134 (2) of the Trade Mark Act, 1999 since the Plaintiff is carrying on business in New Delhi by virtue of:-

• Numerous agreements and contracts entered into by the Plaintiff with various parties within the territory of New Delhi in furtherance of the imminent launch of its Burger King franchisee outlet in New Delhi;

• Approvals sought from the appropriate authorities pursuant to its imminent launch of its Burger King franchisee outlet in New Delhi.

(ii) Under Section 20 of the Code of Civil Procedure 1908 as:

• The Plaintiff has a strong and credible apprehension that the Defendants will expand their operations under the impugned trading style/trade mark of Burger King Restaurants in New Delhi and the threat that the Defendants will use the impugned trade marks/trade names within the jurisdiction of this Hon'ble Court is credible and imminent, thus, giving rise to a substantial and integral part of the cause of action within the jurisdiction of this Hon'ble Court;

• Further the above apprehended activities of the Defendants will be within the jurisdiction of this Hon'ble Court.

• In addition the Defendants' infringing activities are likely to have a dynamic effect on the Plaintiff’s business, both current and forthcoming, within the territory of Delhi. It is evident that the dynamic effect of the Defendant's activities is being felt in Delhi and there exists an undeniable nexus between the cause of action in the present suit and the territory of Delhi.

• Defendant No. 7 operates an interactive website at www.rasresorts.com allowing customers to book rooms and make reservations online thereby specifically targeting customers in Delhi and purposefully availing of the resources of Delhi creating an undeniable nexus of their business with Delhi.”

3. The grounds taken by the Defendant No.7 in I.A. 23496/2014 seeking rejection of the plaint are:-

i. that the Delhi High Court does not have territorial jurisdiction;

ii. that there is no relationship between Defendant No.5, 6 and 7;

iii. that the Defendant No.7 carries on business activities independent of Defendants No.5 and 6;

iv. that the Defendant No.5 and 6 are independent and distinct entities from Defendant No.7;

v. that there is no triable issue that arises.

4. The grounds taken by the Defendants Nos. 1, 2, 3 & 5 in I.A. 17720/2015, seeking return of the plaint are:-

i. that Defendants No.1,2,3 and 4 are actually and voluntarily residing in Mumbai;

ii. that Defendant No.5,6 and 7 have their registered offices in Mumbai;

iii. that the cause of action, infringement, passing of are independent and distinct;

iv. that the cause of action is quia timet cause of action passed on an imminent lounge of franchise by the Defendants in Delhi.

5. Defendant No.6 in I.A. 17721/2015, seeking rejection of the plaint, makes averments similar to the averments made by the Defendants No.1, 2, 3 and 5. Thus, the broad objections raised in this application relate to lack of cause of action and lack of territorial jurisdiction.

6. Ld. counsels for the parties hav