The judgment establishes that for a court to have territorial jurisdiction under Section 134(2) of the Trade Marks Act, 1999, the plaintiff must demonstrate substantial business activities within the jurisdiction, and mere advertisement or presence of a distributor may not be sufficient to establish jurisdiction.

JUDGMENT :

Badar Durrez Ahmed, J.

The plaintiff had instituted the present suit for permanent injunction, infringement of trademark, damages etc. against the defendants. The plaintiff claims to be engaged in the field of printed matter, paper articles, newspapers, periodicals, comic magazines, cartoon strips, story books, films etc. The plaintiff claims to be the proprietor of the Archie Comic Publications as well as the 'ARCHIE' Trademark and its variations which, inter alia, include ARCHIE'S, LITTLE ARCHIE, THE ARCHIES, ARCHIE COMICS etc. The plaintiff has alleged that the trademark 'ARCHIE' was adopted by it in 1942. It also forms part of the plaintiff's trade name. It is contended that by virtue of the long, continuous, open and extensive use by the plaintiff, the 'ARCHIE' trademarks have become intertwined with the identity of the plaintiff and as a result, consumers all over the world, including those in India, associate the 'ARCHIE' trademarks with the plaintiff and nobody else.

2. It is also alleged in paragraph 4 of the plaint that in 1966 Archie Comics were imported into India. There is also a reference to an invoice issued by the plaintiff to Variety Book Depot in New Delhi on 08.05.1979 with regard to the plaintiff's publications. The plaintiff had applied for registration of the 'ARCHIE and Heads' composite trademark/ label bearing the application No. 518483 on 17.10.1989 in Class 16 and the plaintiff has alleged that it has been extensively using the mark in India since 1979. It is alleged that the 'ARCHIES', 'PURPLE ARCHIE', ARCHIES trademark and device are being used by the defendants and the same are identical and/ or deceptively similar to the plaintiff's trademarks 'ARCHIE' and 'ARCHIE and HEAD'. It is alleged that the defendants in spite of the knowledge of the said trademark and/ or activities of the plaintiff, decided to use the said mark without authorization or consent of the plaintiff. The plaintiff allegedly came to know about the defendants for the first time in June 2004 when they came across the advertisement for the 'ARCHIES and device', 'PURPLE ARCHIE' and 'ARCHIES' trademarks bearing application Nos. 597802, 846978, 1062578 and 1222947, all in Class 25. The defendants are allegedly involved in the business of manufacturing and selling kids wear under the 'ARCHIES/ PURPLE ARCHIES' and 'ARCHIES' trademarks. It is consequently alleged on the part of the plaintiff that the defendants are infringing the propriety rights of the plaintiff in the said trademarks. The defendants are also alleged to have passed of their goods and business as those of the goods and business of the plaintiff.

3. The suit has been filed in this Court claiming that it has jurisdiction to entertain the same on the basis of the averments made in paragraph 32 of the plaint. Since the applications under consideration relate to the question of jurisdiction, it would be pertinent to set out the entire paragraph 32 of the plaint :

32. That this Hon'ble Court has the jurisdiction to entertain, try and determine the present suit as a part of the cause of action arose within the territorial jurisdiction of this Hon'ble Court. The Defendant's mark has been advertised in the Trade Marks Journal which was circulated in Delhi, within the jurisdiction of this Hon'ble Court. Therefore, this Hon'ble Court has the jurisdiction to entertain, try and decide the present suit u/s 134(2) of the Trade Marks Act, 1999 as the plaintiff is carrying on its business in Delhi at least since 1979.

4. The defendants filed the application (IA 238/2006) for return of the plaint. Though the application was styled as one under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), since the prayer is for return of the plaint for filing before a proper and competent court, the same is being treated as one under Order 7 Rule 10 CPC. It is the case of the defendants that a plain reading of the plaint makes it obvious that plaintiff