Part of cause of action arose at Chennai as such Chennai High Court has jurisdiction.

R.Jayasimha Babu, J: The appeals filed are against the judgment of the learned single Judge who has given the declaration that had been sought by the plaintiff Amrutanjan Limited against the appellants in O.S.A.No.364 of 1997 - Mehta Unani Pharmacy & Company and Mehta Unani Pharmacy & Company Private Limited, who were the defendants in that suit, that the claim made by the defendants that they are exclusive owners of the expression ‘Cold Rub’ is unjustifiable and has injuncted them permanently from threatening the plaintiff by issuing memos, circulars, advertisements or notices, directly or indirectly declaring that the expression ‘Cold Rub’ shall not be used by anyone.

2. The threat which the plaintiff had alleged to be groundless has been held out in the advertisement issued in ‘Times of India’ dated 6.9.1986 by the defendants in the suit. That notice titled ‘CAUTION NOTICE’, after referring to the fact that the defendants in the suit who were the owners of the registered trade mark ‘COLDRUB’ in respect of vapourising ointment have obtained ad interim injunction against M/s.Warner Hindustan Limited of UPPAL, Warangal Road, Hyderabad and M/s. Akin Laboratories Private Limited at Hyderabad, from the District Judge, Rajkot; went on to state -- ‘anybody manufactures or sells or markets the said vapourising ointment under the trade mark ‘COLDRUB’ shall be liable for breach of injunction and/or in contempt of Court. TAKE NOTICE."

3. It was the case of the plaintiff before the trial Court that the plaintiff is the owner of the trade mark ‘Amrutanjan and Anoleum; that ‘Anoleum’ had been advertised by it along with descriptive expression ‘COLDRUB’, such advertisements have been effected from 1969 onwards; that the plaintiff had obtained a decree in C.S. No.269 of 1977 against the same defendants against infringing the plaintiff’s mark on account of the use by the defendants by name ‘AMRUTMANTHAN’; that the defendants had applied for registration of the mark ‘ATMAMANTHAN’ in the year 1977 and had on 10.07.1978 undertaken to disclaim the descriptive expression ‘COLD RUB’ which had appeared in it’s Trademark Application No.329747; that in a suit filed by the manufacturers of Vicks Vaporub in the year 1982, the defendant had filed an affidavit stating that ‘COLDRUB’ is a descriptive expression and that after having taken that stand the defendants had on 7.7.1983 applied to register the term ‘COLDRUB’. The application for registering the same name was also filed by the defendants on 2.1.1986 and that the advertisement issued by the defendants in the ‘Times of India’ on 6.9.1986 threatened all persons with an action of proceedings for breach of injunction and for contempt of court and that the plaintiff being aggrieved by the threat, had instituted the suit seeking reliefs under Sec.120 of the Trade and Merchandise Marks Act, 1958.

4. The suit was resisted by the defendants who did not specifically deny that the advertisement had indeed been issued by the defendants in the ‘Times of India’ and that ‘Times of India’ did have all India circulation. The defendants raised various other pleas with regard to that mark having been registered in their favour under the trade mark name ‘ATMAMANTHAN’ Cold Rub as Trademark No.329747. They also raised other pleas which resulted in the learned single Judge having had to frame as many as nine issues. The advertisement issued by the defendants in Times of India on 6.9.1986 was marked as Ex.P.22 at the trial. The four advertisements which the plaintiff had issued in ‘Kumudam’ issues dated 9.10.1969, 30.10.1969, 20.11.1969 and 11.12.1969 were together marked as Ex.P.37. The letter of the defendants through their Attorney dated 10.7.1978 disclaiming the descriptive expression ‘COLDRUB’ appearing in the trade mark Application No.329747 was marked as Ex.P.20. A copy of the affidavit filed by the defendants in the case against them by Vicks Vaporub and in which affidavit it had been stated by the defendants that

Click Here to Read the rest of this document