Lalli Enterprises vs M/S. Dharma Chand & Sons
2000 Latest Caselaw 170 Del

ORDER

J.B. Goel, J.

1. Plaintiff has filed this suit for infringement of trademark "A.B.C. (label)" and passing off action in respect of copyright in the label of the trade mark besides rendition of accounts etc. against the defendant. Defendant is doing business at Rewari (Haryana).

2. It is alleged that the plaintiff is doing the business of manufacturing "MATCH BOXES" for the last five years under the trademark "A.B.C. (label)" and selling the same in the match boxes with the label/carton/wrapper in distinctive and artistic design and has acquired copyright. The trade mark is also registered in its name with the Registrar, Trade Marks.

3. It is alleged that the defendant has recently started manufacturing and marketing the "MATCH BOXES" adopting identical and deceptively similar trademark "A.D.C. (label)" and similar label thereby infringing the plaintiff's trademark and copyright and passing off inferior goods thereby causing confusion and deception among the public and loss to the plaintiff.

4. I have heard the learned counsel for the plaintiff, inter alia, on the question whether plaint discloses the cause of action against the defendant. Learned counsel could not explain as to from where the alleged offending label 'Y' alleged to be of the defendant, has been procured. The basis for involving the defendant has also not been disclosed.

5. In para 7 it is alleged that the defendant has recently started manufacturing and marketing "MATCH BOXES" with the offending trademark and the label. It is a vague plea. In para 10 and 14 of the plaint, it is pleaded as under:-

10. "That the defendant may be directed to disclose the full name and full address of the manufacture from whom the goods are being purchase by them."

14. "That the cause of action for the present suit arose in favour of the plaintiff and against the defendants three days back, when the plaintiff came to know about the manufacture and sale of `Match Boxes' under the canton and trade mark "A.D.C. (label)". The cause of action for the suit arose at Delhi where the plaintiffs appropriate Trade Marks Registry is situated, where the plaintiffs trade mark is applied for registration, where the piracy of the plaintiffs trade mark and passing off committed by the defendants first came to the notice of the plaintiffs, and de die in diem thereafter as the defendants are still persisting in their illegal activities of passing off within the territorial jurisdiction of this Hon,ble Court."

6. The please about recent user are vague. The goods are subject to Excise Duty and if the plaintiff so minded, could have found out the manufacturer and supplier of the goods. On the MATCH BOXES 'Y' available at page 2 of the documents (alleged to be of the defendant) the name is printed as under:-

"MURUGAN MATCH WORKS, KOVILPATTI"

Obviously, this could be the manufacturer and supplier of the goods with the alleged infringing trade mark/label.

7. The action for infringement or passing off lies against a manufacturing who is supplier and seller of the goods which causes deception. It is not the case of the plaintiff that the defendant is a manufacturer of the goods. In the absence of material such as voucher, bill or any material showing the source of supply of the goods with the offending trade mark/label it cannot be said that it is the defendant who is responsible for the alleged acts of infringement or passing off the goods. plaint must disclose the facts to connect the defendant which it is lacking. On the material on record it will not be proper to drag the defendant to Delhi. Thus it cannot be said that the plaint discloses cause of action or that the plaintiff has any cause of action against the defendant.

The plaint is thus rejected for not disclosing the cause of action.

I.A. 227/2000

8. Dismissed as infructuous.