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2021 Supreme(Mad) 816
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Tirumalaa Daairy Limited, Rep. by its Director Suresh Dnyanobarao Kute & Others – Appellant
Versus
Thirumala Milk Products Private Limited, Rep.by its Manager (Legal), S. Mukudh – Respondent
A.No. 181 of 2021 in C.S. No. 190 of 2020
Decided On : 19-04-2021
Advocate Appeared:
For the Appellant :A.R.L. Sundaresan, Sr.Counsel, A.K. Balaji, Advocate.
For the Respondent:P.V. Balasubramaniam, Advocate.
Point of Law: Section 134 (2) of Trade Mark Act, does not mandate that place of business necessarily be the place of registered office. Company like plaintiff may have several places of business and Act enables the plaintiff to file the suit at the place where they carried on business and need not file suit at the place of defendants.
Headnote:
Civil Procedure Code, 1973 - Order 7 and 14 - Rule 8 and 11(4) - Trademark Act, 1999 - Section 134(2) - Commercial suit - Cause of action - Passing off business of plaintiff in milk and dairy products - Infringement of registered trademark - Rejection of plaint - Whether suit filed at Chennai satisfies Section 134(2) of Act and or under clause 12 of Letters Patent - Grievance against defendant is that in beginning of June 2020, plaintiff started receiving calls from several milk suppliers, enquiring whether they have opened any separate Dairy - On getting such enquiry, plaintiff started making enquiries and came to know that defendants 1 and 2 had started publishing their products ‘Tirumalaa Daairy’ and on further enquiry, they came to know that 1st respondent company has been recently acquired by Kute Group.
Finding of the court: Plaintiff has not placed any material to show that they were carrying on business within the jurisdiction of this Court on date of filing the suit. However, this is not a ground to reject Plaint under Order 7 Rule 11 (d) of C.P.C, but to be returned for representing before appropriate Court. Hence Plaint is returned to be represented before the appropriate Court having jurisdiction to hear - There is an attempt to infringe the trademark by Sdefendants and had granted interim relief restraining the respondents from using the trademark Tirumalaa/Tirumalaa Daairy, which is deceptively similar to that of the registered trademark of the plaintiff, this Court extends the interim order for a period of two months to enable plaintiff to take back the Plaint and present it before the appropriate Court -
Result: Application disposed
JUDGMENT :
(Prayer: Application is filed under Order XIV Rule 8 of O.S.Rules Read with Order 7 Rule 11(4) of the Civil Procedure Code, 1973, prayed to reject the Plaint in C.S.No.190 of 2020 and impose heavy cost.)
1. The commercial suit is filed to restrain the defendants from infringing the plaintiff-s registered trademark namely Thirumala/Thirumala Milk and from passing off the business of the plaintiff in the milk and dairy products by using the plaintiff’s trademark Thirumala/Thirumala Milk products or any other mark, which is deceptively similar.
2. The Plaint sought to be rejected by the defendants on the ground that the plaintiff does not have any sales office within the jurisdiction of the High Court, Madras. No cause of action arose within the jurisdiction of the High Court, Madras. By misrepresentation and by placing false materials, documents and records the plaintiff has played fraud on the Court.
3. The Plaint averments in brief are that, the plaintiff’s company is a leading Dairy Company in India established in the year 1988. It is the firm present in major states of India such as Tamilnadu, Karnataka, Andhra Pradesh, Telangana, Kerala, Maharashtra and West Bengal. The plaintiff’s company uses the trademark ‘Thirumala’ as a stand alone word, ‘Thirumala Milk’ and ‘Thirumala’ has written as stylised form. The proprietary rights in the trade mark of ‘Thirumala’ has been well acknowledged and statutory protection in India by way of trademark registrations. The wide range of the milk and dairy products offered by the plaintiff, the Thirumala Milk/Thirumala trade mark per se, solely and exclusively associated with the plaintiff across all segments of the trade and public.
4. The grievance against the defendant is that in the beginning of June 2020, plaintiff started receiving calls from several milk suppliers, enquiring whether they have opened any separate Dairy, Factory in Beed, Maharashtra. On getting such enquiry, the plaintiff started making enquiries and came to know that the defendants 1 and 2 had started publishing their products ‘Tirumalaa Daairy’ and on further enquiry, they came to know that the 1st respondent company has been recently acquired by Kute Group. The 3rd and 4th defendants are the promoters of the 2nd defendant’s company. They are also Directors of the Tirumalla Oil Mills Private Limited.
5. It is averred in the Plaint that from the private investigation conducted by them, they came to know that the 1st defendant’s company likely to launch a product with the mark ‘Tirumalaa Daairy’ by the end of August 2020. The name of the 1st respondent company had been changed from ‘Swaraj India Industries Limited’ to ‘Tirumalaa Daairy Limited’ in order to confuse the consumer by using deceptively similar trademark and trade name. Further alleging that the defendants have launched their new unit with the impugned branch at Kolathur, Chennai. On 01.01.2020, the plaintiff has filed a suit at Chennai alleging that part of cause of action falls within the jurisdiction of this Court.
6. The application to reject the Plaint filed by the Director of the 1st respondent company on behalf of the defendants specifically alleges that the address of the plaintiff furnished in the Plaint is incorrect and has been shown as carrying on business in the said address to mislead the Court and bring the suit within the territorial jurisdiction of High Court, Madras.
7. It is further averred that, the plea that cause of action for the suit arose on 01.01.2020, when the defendants 1 to 4 launched their new unit with the impugned mark, which is available for access through You Tube at Chennai will not confer any jurisdiction of this Court. The defendants claim that they acquaint the 1st defendant company, which is having registered office at Maharashtra being ardent followers of lord Venkateshwara he adopted the mark Tirumalaa. They are using the said trademark with respect of edible oil and other products made out of oil since 2004. In th
