M. Sundar, J.

This is an application seeking amendment of plaint. Applicant herein is the plaintiff in the main suit. Defendants 1 and 2 in the main suit are respondents 1 and 2 respectively in this application. The parties in this amendment application are referred to by their respective ranks in the main suit for the sake of convenience and clarity. In other words, the applicant in this application is referred to as plaintiff and respondents 1 and 2 in this application are referred to as defendants 1 and 2. Both the respondents in this application are collectively referred to as defendants. All for the sake of convenience and clarity.

2. Plaintiff is a Chennai based company engaged in the business of manufacturing, marketing and exporting household kitchen appliances, such as Mixer Griender, Wet Griender, Iron boxes, Electric Cookers, Microwave Ovens etc., Plaintiff claims that it has launched a new range of Mixer Grinder hearing a mark 'Preethi Blue Leaf' in the year 2005. This mark 'Preethi Blue Leaf' applied on the product Mixer Grinder is the subject matter of the suit. Therefore, the mark 'Preethi Blue Leaf' that is sought to be applied on the mixer grinder is referred to as 'said mark' for the sake of convenience. Plaintiff chooses to refer to the said mark as 'trade dress'. Therefore, the terms said 'mark' and 'trade dress' are used synonymously and alternatively in this order.

3. Plaintiff has applied for registration of trade mark with regard to the said mark.

4. Besides applying for registration of trade mark, the plaintiff claiming novelty in the leaf motif shape pertaining to the said mark/trade dress had also applied for registration of design. Design registration was granted on 6.1.2005 by the appropriate authority in Calcutta.

5. Therefore, the plaintiff with regard to the said mark/trade dress had applied for registration of trade mark application was pending and design registration application had been acceded to and design was registered.

6. When things stood as above, plaintiff stating that it came across defendant's Mixer Grinder products with similar mark/trade dress, filed the instant suit on 24.9.2008 in this Court complaining of infringement of its registration design and passing off of the said mark/trade dress.

7. The first defendant entered appearance and the contest began. First defendant sought rejection of plaint under the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for brevity) primarily on the ground that both the defendants reside out side the jurisdiction of this Court and the plaintiff had not obtained leave under Clause 12 of the Letters Patent which is a mandatory requirement. Rejection of plaint application was dismissed and first defendant carried it by way of an Intra Court Appeal to a Division Bench of this Court vide O.S.A. No. 40 of 2009. One of the main issues in the Intra Court Appeal was whether this is a Copy right suit and whether the plaintiff would have the benefit of Section 62 of the Copy Right Act, qua jurisdiction. However, in the light of the plaint averments that the alleged infringement had taken place within the territorial jurisdiction of this Court OSA was dismissed. This dismissal of OSA. No. 40 of 2009 on 25.09.2013 is a reported judgment, reported in 2013-5-L.W. 440 : 2013 (6) CTC 247.

8. In the interregnum, pending the above said Intra Court Appeal, the instant application for amendment of plaint was taken out by the plaintiff on 23.02.2011.

9. The sole basis on which the amendment application has been filed is that the application for registration of trade mark of the said mark of the plaintiff which was pending at the time of institution of suit has since fructified into a registration and therefore, the plaintiff wants to amend the prayer so as to claim relief against alleged infringement of said mar