The central legal point established in the judgment is the interpretation of jurisdictional requirements under Clause 12 of the Letters Patent in the context of trade mark infringement and passing off cases.

A. Ramamurthi, J.

The applicants/plaintiffs filed the application under Clause 12 of the Letters Patent to grant leave to sue the respondent in this Court.

2. The case in brief is as follows:

The applicants filed a suit against the respondent for perpetual order and injunction restraining the respondent and their men from infringing the first applicant's registered trade mark FESOVIT by manufacturing, selling, distributing or offering tablets, pharmaceutical preparations bearing the trade mark FEVORIT or any mark similar to the trade mark of the applicant and also from passing off and enabling others to pass off the respondent's goods as that of the applicants. The first applicant is a Company incorporated in United Kingdom and is a leading manufacturer of pharmaceutical products. It has registered several trade marks in India and all over the World. The second applicant is the Associate Company of the first applicant. The first applicant is the proprietor of trade mark FESOVIT registered in clause 5 in respect of pharmaceutical, veterinary and sanitary preparations and substances. The registration is valid upto 27.7.2006. The first applicant has entered into an User Agreement dated 6.3.1985 with the second applicant authorising the later to use the trade mark of the applicant in India. The second applicant came to know in July, 2000 that the respondent is manufacturing and selling tablets bearing the trade mark FESOVIT. Both the drugs are available across the counter. The tablets of both companies would be sold in the same shops to the same class of purchasers which would lead to confusion and deception among the trade and public. The act of infringement and passing off have been committed by the respondent at Chennai since the tablets are sold at Chennai and, as such, this Court has got jurisdiction.

3. The respondent filed counter affidavit and contended that the present application is not maintainable. The applicant can seek for leave provided substantial part of the cause of action has arisen (within the jurisdiction of this Court. In the instant case, there should be commercial sale of goods with the impugned trade mark should have been sold by the stockist or distributors or dealers of the respondent so as to infer, that this Court has jurisdiction. The applicants have to establish the same. It is not the claim of the applicant in the plaint that such a commercial sale is going on in the City of Chennai. The cause of action paragraph in the plaint also did not disclose the same. The knowledge of the applicants cannot be a ground for grant of leave and the conduct of the applicants amounts to abuse of the forum. Further, the applicants trade mark and the respondent's trade mark are not deceptively similar and pointed out various reasons in para 4 of the counter. The respondent also will furnish details regarding the pending registered trade marks with the prefix FES and suffix VIT from the Office of Trade Mark Registry from 1940 till date. The cause of action as stated in the plaint does not reveal part or substantial part and, as such, the application is liable to be dismissed.

4. Heard the learned counsel of both sides.

5. The points that arise for consideration are

(1) Whether the applicants have made out a case to grant leave under clause 12 of the Letters Patent to institute a suit against the respondent?

(2) To what relief?

6. Points: The applicants/plaintiffs filed the application under Clause 12 of the Letters Patent to grant leave to sue the respondent on the ground that part of the cause of action had arisen within the jurisdiction of this Court. The applicant is manufacturing and selling the tablet FESOVIT. In July 2000, the second applicant came to know that the respondent is manufacturing and selling tablets bearing the identical trade mark and both drugs are available across the counter. In short, it is stated that the act of infringement or passing off has been committed by the respondent at Chennai sin