Territorial jurisdiction in trademark infringement cases requires proof of actual sales in the jurisdiction, not mere trap transactions, supported by relevant documentation.

JUDGMENT

Jayant Nath, J.

I.A. 9741/2020

1. This suit is filed by the plaintiff seeking a decree of permanent injunction restraining the defendants from using the registered trade mark RIETER or any similar mark amounting to infringement. Similar relief of injunction is also sought regarding infringement of the plaintiff's registered Patent No. IN 324406. Other reliefs are also sought.

2. This is an application filed by defendant No.1 under Order 7 Rule 10 CPC praying to return the plaint to be filed in the court of appropriate territorial jurisdiction. It is pleaded in the application that the present suit has been filed by the plaintiffs for alleged infringement of trademark, patent infringement, passing off, rendition of accounts etc. Defendant No. 1, it is stated, is a private limited company having its registered office in Coimbatore, Tamil Nadu. Defendant No. 2 is a resident of Chandigarh. The plaintiffs have their registered office in Maharashtra. It is stated that the plaintiffs in an attempt to unduly harass the defendants have filed the present case before this court having no territorial jurisdiction over the present dispute. It is stated that under Section 20 CPC read with Section 134 of the TRADE MARKS ACT , the plaintiffs can institute a case at a place where either of the parties are having their principal place of business i.e. head office or a branch office. In the present case, neither of the parties have their head office or branch office or even principal place of business within the territorial jurisdiction of this court. None of the parties are residents of Delhi or have offices or place of business within the territorial jurisdiction of Delhi.

3. It is stated that even if the averments made in the plaint are taken on their face value, the case set up by the plaintiffs is that their investigator visited the premises of defendant No. 1 at Coimbatore and placed an order for the impugned articles via email. Hence, the plaintiffs have orchestrated a one-time trap purchase to harass and prejudice the defendants and have filed the present case before this court which lacks territorial jurisdiction. The plaintiffs sought to get the impugned articles delivered at the residence of their constituted attorney-Mr.Vishal Vig which cannot be deemed to be an accrual of a cause of action within the territorial limits of this court. Hence, the present application.

4. I have heard learned counsel for the parties.

5. Learned counsel for the defendants relies upon the judgment of the Division Bench of this court in the case of Banyan Tree Holding (P) Ltd. vs. A. Murali Krishna Reddy & Anr., 2009 SCC OnLine Del. 3780 and judgment of a Coordinate Bench of this court in the case of Indovax Pvt. Ltd. vs. Merck Animal Health and Ors., 2017 SCC OnLine Del. 9393 to plead that a solitary trap transaction as done in the present case does not confer territorial jurisdiction on this court.

6. Learned counsel for the plaintiffs, however, strongly urges that as per the averments made in the plaint and the documents filed by the plaintiffs, defendant No. 2 is an agent of defendant No. 1 for the northern territories of the country including Delhi. Goods in question were purchased in Delhi. Further, the goods were delivered in Delhi by the said defendant No. 2 acting as an agent of defendant No. 1. It is stated that Section 20 CPC is clearly applicable to the facts of the present case. It is urged that the judgment of the Division Bench of this court in the case of Banyan Tree Holding (P) Ltd. vs. A. Murali Krishna Reddy & Anr.(supra) pertains to a case of online tra