The main legal point established in the judgment is that passing off actions in relation to anything other than goods are maintainable in ordinary courts, and the service rendered by a printing press does not fall within the concept of goods under the Trade and Merchandise Marks Act.

1. The revision petitioners are defendants 1 and 2 in O. S. No. 247 of 1978 of the Sub Court, Ernakulam, and the respondent, the plaintiff in that suit. The suit was for a permanent injunction to restrain the petitioners from carrying on business in the name of "Victory Press Offset Printers" or any other name likely to mislead or deceive the public into the belief that the press run by defendants is the same as the plaintiff's business known as 'Victory Offset Printers' or any such other name allied to that. According to the plaintiff he started a Press at Kunnamkulam by name Victory Offset Printers. This press earned a name and reputation throughout Kerala and outside as one of the best printing establishments. Several leading institutions and the public were impressed with the excellence of the printing and the business methods adopted by the plaintiff. The defendants knowing about this, in an attempt to divert the plaintiff's business to them, made arrangements to start another press at M. G. Road, Ernakulam, with the name 'Victory Press Offset Printers". According to the plaintiff, this act of the defendants was clearly to pass off the new business as that of the plaintiff. The defendants, inter alia, contended that the suit was in effect a passing off action within the meaning of S.105 of the Trade and Merchandise Marks Act and as such the suit should have been instituted in the District Court and no court subordinate to it could entertain the same. The court below considered this question as a preliminary issue and held that the suit was maintainable in the Sub Court. Hence this revision.

2. S.105 of the Act reads:

"Suit for infringement, etc., to be instituted before District Court. No suit

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered;

shall be instituted in any court inferior to a District Court having jurisdiction to try the suit."

It is not in dispute that it is S.105(c) that is applicable to the case, which is a passing off action. S.105(c) relates to a passing off action arising out of the use by the defendants of any trade mark. Trade mark is defined in the Act under S.2(v) as follows:

"trade mark" means

(i) in relation to Chapter X (other than S.81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and

(ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trademark registered as such under the provisions of Chapter VIII;"

I may usefully quote S.27 also for purposes of understanding the nature of the right that a party has, to bring an action against any person for passing off.

"27. No action for infringement of unregistered trade mark. (1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.

(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof."

3. S.105 occurs in Chapter XI. Therefore, while dealing with this section, the relevant definition of the word 'trade mark' is found in S.2(v)(ii). This part of the definition defines trade mark as "a mark used or proposed to be used in relation to goods", that is, it need not be a regis