A plaintiff's lack of trademark registration at the time of suit filing negates any claims of trademark infringement.

1. This appeal challenges an order of rejection of plaint passed under Order-7, Rule-11 of the Code of Civil Procedure, 1908 (for short “C.P.C”) dated 27th September, 2022 mainly on the ground that the plaint does not disclose cause of action.

2. Few facts germane for disposal of this appeal are summarized as below.

3. Appellants have filed a suit against respondent for alleged infringement of trademark, passing off, delivery, rendition of accounts etc. On 18th September, 2021, respondent moved an application under Order-VII, Rule-11 of the C.P.C for rejection of the plaint on various grounds. However, respondent emphasized on the aspect of non disclosure of cause of action in the plaint.

4. In paragraph 12 of the plaint, appellants have averred that the respondent has developed a portal “www.1rm.in” by contending that the respondent is also trying to use the generic term “1RM” on the “www.1rm.in” website. The appellants have sought relief in the light of the business conducted through the aforesaid website. According to the respondent, she has not developed the said portal viz “www.1rm.in” and the said domain is registered in the name of Yash Sharma who is also a Proprietor of “1RM” business entity and, therefore, the appellants cannot claim the relief as prayed for.

5. It is further contended that the appellants have sought relief of “trademark infringement” in the plaint, however, admittedly the appellants did not have trademark registration over their device/logo “1RM Fitness at the time of institution of the suit. The ”

appellants received trademark registration on 17th March, 2021 i.e much after the date of institution of the suit and, therefore, according to the respondent, cause of action did not exist as regards alleged trademark infringement on the date of filing of the suit.

6. It is also the contention of the respondent that even entire plaint, if read as a whole, does not disclose a valid cause of action with respect to passing off as the appellants have not pleaded any form of “deception”, and/or “misrepresentation” in the plaint against the respondent which are essential elements to constitute the tort of “passing off”.

7. I heard learned Counsel for the appellants and the respondent.

8. Counsel for the appellants, while pointing at para 18 of the plaint submits that a blank space in the said para meant for stating as to when the cause of action first arose to file a suit was a typographical error. Paragraph 18 of the plaint is reproduced below;

“18. Plaintiff state that cause of action for filing present suit firstly arose on ---- when Plaintiff was mistakenly tagged in one of the Facebook post by Defendant thereby marketing under the brand- “1RM”. It further arose when Plaintiff got knowledge that Defendant made application to Trademark Registry for registration of mark - “1RM”. It further arose on 12.09.2020 when Plaintiff filed Oppositions/Objection to the Trademark Registry. Cause of action further arose on 14.09.2020 when Plaintiff issued legal notice to Defendants thereby directing them to refrain the use of impugned mark. However, Defendants have still continued to use the impugned mark. Therefore, cause of action is continuously arising thereafter”.

The Counsel argues that the plaint ought not to have been rejected only on the ground that there is an omission to mention as to when the cause of action first arose. In support of his contention, he placed reliance on a judgment of the Hon’ble Supreme Court in the case of Jageshwari Devi and others Vs. Shatrughan Ram , in Civil Appeals No.1456 and 1457 of 2022. Paragraph 4 of the said judgment