Trademark and copyright infringement claims assessed based on prior use and territorial jurisdiction affirmed.

JUDGMENT :

AMIT BANSAL, J.

1. By way of the present judgment, I shall decide I.A. 14723/2023 filed on behalf of the plaintiff under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) seeking interim injunction and I.A. 20814/2023 filed on behalf of the defendant under Order VII, Rules 10 and 11, CPC seeking return/rejection of plaint.

I.A. 20814/2023 (u/O VII Rules 10 and 11, CPC

2. The present application has been filed on behalf of the defendant seeking return/rejection of plaint.

3. The principal ground taken by the defendant is that this Court lacks territorial jurisdiction to adjudicate the present suit on the ground that the plaintiff’s registered office is situated in Haryana.

4. It is submitted that as per Section 134 of the Trade Marks Act, 1999 and/or Section 62 of the Copyright Act, 1957 , the plaintiff cannot claim jurisdiction of this Court since it does not carry on business or personally works for gain in Delhi.

5. It is further stated that not only does the defendant not have any office in Delhi, but no alleged infringing goods are available in the territorial jurisdiction of this Court. The invoice produced by the plaintiff also arises out of sale by one ‘Mangal Trading Company’, based in Krishna Nagar, Mathura, Uttar Pradesh.

6. It is the settled position of law that an application under Order VII, Rules 10 and 11 has to be decided on the basis of a demurrer; the Court has to refer only to the averments made in the plaint along with the documents filed with it for the purpose of deciding this application. No reference can be made to the written statement filed by the defendant or on any other document filed by the defendant.

7. At this stage, reference may be made to the relevant paragraph in the plaint dealing with the issue of the jurisdiction. Paragraph 34 of the plaint is set out below:-

“34. This Hon’ble Court has the necessary territorial jurisdiction to entertain and try the present suit, under Section 20 of the Code of Civil Procedure, 1908 as the cause of action for the present suit has arisen within the Jurisdiction of this Hon’ble Court. The Defendant is selling the products bearing the device of Robin bird in Delhi. Additionally, the Defendant is also offering for sale, advertising and promoting its goods bearing the device on the website viz. IndiaMart.com which is accessible inNew Delhi.”

8. The plaintiff has also placed on record an invoice to show that the products of the defendant have been shipped to a consignee in Delhi for purposes of sale. (pages 15-17, volume 1 of the plaintiff’s documents).

9. Further, in a suit filed by the defendant before the Commercial Court in Agra, the defendant herein (plaintiff in the suit) has specifically averred that its goods bearing the device mark of the bird are sold all over India. The relevant pleadings from the plaint before the Agra Commercial Court are set out below: -

“12. That the Plaintiff has also spent substantial amount in advertising it’s said products in India and thus, have earned valuable goodwill and reputationamongthepublicandtradeinIndia.”

“18. That the Plaintiff is the Registered Owner of the trade/ device mark, DEVICE OF BIRD under the Trade Marks Act, 1999 and the Copyright Act, 1957 and is continuously using the said mark/device since the year 1976 without any hindrance or interference and is known for its quality goods all over India. Thus, the Defendant has no justification for adoptionanduseof thetrade/ device mark(s)…”

10. Basis the averments made in the plaint along with the documents filed therewith, at this stage, the plaintiff has established jurisdiction of this Court. Therefore, in light of the above, I do not find any merit in the present application filed by the defendant and the same is accordingly dismissed.

I.A. 14723/2023 (u/O XXXIX Rules 1 and 2, CPC

11. The present application has been filed on behalf of the plaintiff seeking grant of