O R D E R

% 17.08.2022 VIBHU BAKHRU, J. (ORAL)

CM APPL. 34736/2022 (for condonation of delay)

1. This is an application filed by the appellant seeking condonation of delay of 115 days in filing the present appeal.

2. The learned counsel appearing for the respondents fairly states that part of the delay would be covered by the blanket orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation: Suo Motu Writ Petition (Civil) No.3/2021.

3. He also states that he has no objection if the delay is condoned.

4. In view of the above, the application is allowed.

FAO (COMM) 116/2022 & CM APPL. 34735/2022

5. The appellant has filed the present appeal impugning an order dated 31.01.2022, whereby the learned Commercial Court has partly allowed the application filed by the respondents (defendants) under Order VII Rules 10 and 11 of the Code of Civil Procedure, 1908 (hereafter ‘the CPC’).

6. The learned Commercial Court accepted that it had no jurisdiction to entertain a suit for relief of passing off on a finding that no part of a cause of such action had arisen within the territorial jurisdiction of the court.

7. The appellant (plaintiff) had filed a suit under Sections 134 and 135 read with Section 27(2) of the Trademarks Act, 1999 as well as under Section 51 of the Indian Copyright Act, 1957, inter alia, for permanent injunction, restraining, passing off, infringement of copyright, rendition of accounts, damages etc. against the respondents (defendants).

8. The appellant claims that it is, inter alia, engaged in the business of distribution, trading and marketing of snacks, sweets and namkeens under the trademark . The appellant had also applied for registration of the trademark DEVARPAN under various classes. However, the respondents have opposed the same.

9. The appellant had also applied for the artistic work DEVARPAN under the Copyright Act, 1957 and claims that the same was registered in its favour, under Registration No. A-15308/2019.

10. The appellant alleges that the respondents (arrayed as defendants in the suit) have dishonestly adopted a deceptively similar trademark “DEV- ARPA (Device)”, which is deceptively similar to the trademark used by the appellant (plaintiff).

11. The appellant’s registered office is located within the territorial jurisdiction of the learned Commercial Court. In its plaint, the appellant (plaintiff) had also alleged that the respondents (defendants) were selling their goods under the deceptively similar trademark in various markets, which are located within the territorial jurisdiction of the learned Commercial Court.

12. The learned Commercial Court accepted that an action for infringement of copyright would be maintainable as the appellant (plaintiff) was entitled to file such a suit before a court exercising jurisdiction in respect of the area where its registered office is located. However, the court did not accept that any cause of action for passing off had arisen within the territorial jurisdiction of the court. This was, principally, for the reason that the appellant (plaintiff) had not produced any material to substantiate its allegations that the respondents (defendants) were selling the goods within the territorial jurisdiction of the court.

13. Accordingly, the learned Commercial Court directed the appellant (plaintiff) to amend the plaint to restrict the action in respect of infringement of copyright and permitted the appellant (plaintiff) to file a separate suit for passing off in a court where cause of action in respect of such a relief had arisen.

14. The principal question that arises for consideration is whether the plaint discloses that the cause of action has arisen within the territorial jurisdiction of the learned Commercial Court.

15. In this regard, Paragraph 41 of the plaint is relevant and is reproduced as under:

“41. That this Hon'ble Court has the territorial jurisdiction to try and adjudicate the present suit. The defendants is offering to sell and are distributing an