An application for registration of a trademark in a particular jurisdiction can give rise to a cause of action in that jurisdiction, even if the defendant's business is confined to another jurisdiction.

BHASKARAN, J.

The Plaintiff, who is engaged in Seeval business from 5.11.1984 in Tamil Nadu, has been buying new aricanut from growers and merchants, sort, grade and clean them, slice them, mix them with several ingredients and packet them is different sizes for ready consumption in the market. This product has been marked throughout with the trade mark

"Appu Seeval'. The trade mark consists of a dancing elephant on a globe with the word Appu printed on the left and Seeval printed on the right. The packets are sold in different quantities. The plaintiff has also registered his business as a small Scale Industrial Unit with the Department of Industries and Commerce. The plaintiff has developed his business and his turnover is in the region of Rs. 60, 00/- per month. The plaintiff has also availed bank loan for his business.

2. While so, the plaintiff came to know that the defendant has also started Seeval business with the trade mark 'Appu Seeval'. The defendant has also been circulating the news that the he has secured the registration of 'Appy Seeval' as a trade mark under the Trade and Merchandise Marks Act, 1988 (hereinafter referred to as the Act) but on verification it was found that the statement is not correct. The defendant's trade mark is also identically similar to that of the plaintiff. The defendant has not registered his trade mark but has only filed an application for registration with the Registrar of Trade Marks on 13.1.1988 of the trade mark consisting of words ' Appy Seeval, and pictorial representation identical to that of the plaintiff's trade mark. The defendant's application in Class 31 has been assigned the number 484155 by the Registrar of Trade Marks. In that application the defendant claimed the user of the above mark since 1987. Whereas the plaintiff is the continuous user of the mark from 1984. As such, the plaintiff has become the owner of the trade mark consisting of the words 'Appu Seeval' and the pictorial representation of the dancing elephant on the globe. Even according to the representation made by the defendant before the Registrar of Trade Marks, he has been using the trade mark since November, 1987.

3. With the above allegations, the plaintiff has filed the suit for permanent injunction restraining the defendant by himself, his servants, agents or anyone claiming through him from passing off aricanut products/seeval/supari or any other similar goods with the labels/wrappers similar to that of the plaintiff or any manner passing off his goods as the goods of the plaintiff and for other reliefs. Pending the suit, the plaintiff has also filed application No. 1143 of 1988 for grant of interim injunction. The defendant took notice in the injunction application Therefore, no interim order was passed.

4. The suit itself was filed by the plaintiff after obtaining leave to institute the suit in application No. 863 of 1988. The defendant has filed Application No. 1283 of 1988 to revoke the leave granted stating this Court has no jurisdiction since the defendant is carrying on business only in the area of Kumbakonam in Thanjavur District and his products are manufactured and marketed only in that area, He has not expanded his business to any other area, according to the defendant, no part of the cause of action arises in Madras. His application to the Registrar of Trade Marks will not give any cause of action to the plaintiff. The plaintiff should have filed the suit only in the Court of the District where the goods manufactured and marketed. Therefore, the leave already granted has to be vacated.

5. The plaintiff has filed the suit on the basis that the defendants is passing off his goods viz., Seeval as that of the plaintiff by using the identical trade mark consisting of the words 'Appu Seeval' and pictorial representation of a dancing elephant on a globe. On a look of both the labels of the plaintiff and the defendant, there is no difficulty to conclude that both are identically similar.