Delhi High Court
P.K. Sen vs Exxon Mobile Corporation And Anr on 4 January, 2017
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.01.2017
+ FAO (OS) No.290/2016 & CM No.37465/2016
P.K. SEN ... Appellant
versus
EXXON MOBILE CORPORATION AND ANR... Respondents
Advocates who appeared in this case:-
For the Appellant : Mr S. Chakraborty
For the Respondents : Ms Anuradha Salhotra with Mr Yatin Grover
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
BADAR DURREZ AHMED, J
1. The present appeal raises the question of territorial jurisdiction of this
court in entertaining the suit filed by the respondents. The appeal arises out
of the judgment and / or order dated 22.07.2016 delivered / passed by a
learned single Judge of this court in IA No.20626/2015 which was filed by
the appellant herein (defendant) under Order VII Rule 10 and Order VII
Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‗the
CPC'). The application was dismissed and the learned single Judge held
that this court had territorial jurisdiction to entertain the suit which was one
of infringement of trademark.
2. Before we proceed any further, it would be appropriate to identify the
parties. The respondent No.1 was the first plaintiff and is a corporation /
company incorporated in USA. It has no office in India and by itself does
not carry on any business in India. It is the registered proprietor of the
trademark ―EXXON‖ in respect of various goods and services. The
respondent No.2 / plaintiff No.2 is said to be a wholly owned subsidiary
and is registered as a company under the Companies Act, 1956 in India. Its
registered office is in Delhi and it carries on business, inter alia, in Delhi.
The respondent No.2 / plaintiff No.2 is claimed to be the permitted user of
the ―EXXON‖ trademark and name in India through a trademark licence
agreement entered into between the two respondents on 13.04.2010.
3. The appellant / defendant is the proprietor of ―EXON Engineering
Corporation‖ and his offices are located in Kolkata.
4. The said suit was filed in Delhi on the basis of the averments
contained in paragraph 26 of the plaint which read as under:-
―26. This Hon'ble Court has the jurisdiction to entertain and
try the present suit as the second Plaintiff herein has its
registered office in New Delhi within the territorial jurisdiction
of this Hon'ble Court. The second Plaintiff is a subsidiary of
the first Plaintiff and the permitted user of the EXXON mark
and name in India. By virtue thereof and by virtue of the
provisions of Section 134(2) of the Trade Marks Act, 1999, this
Hon'ble Court has the territorial jurisdiction to try and entertain
the present suit.‖
5. From paragraph 26 of the plaint, as reproduced above, it is evident
that the suit has been filed in Delhi by seeking to invoke the provisions of
Section 134(2) of the Trade Marks Act, 1999 (hereinafter referred to as ‗the
said Act'). The said provision has been invoked on the ground that: (i) the
respondent No.2 / plaintiff No.2 has its registered office in New Delhi
which is within the territorial jurisdiction of this court; (ii) the plaintiff
No.2 / respondent No.2 is a subsidiary of the plaintiff No.1 / respondent
No.1; and (iii) the plaintiff No.2/ respondent No.2 is a ―permitted user‖ of
the ―EXXON‖ mark and name in India.
6. Before the learned single Judge, it was contended on behalf of the
appellant / defendant that this court did not have territorial jurisdiction to
entertain the suit for injunction which was essentially a suit for
infringement of the said trademark. It was contended that the appellant /
defendant carried on business in Kolkata and had no business in Delhi.
Furthermore, in view of Section 53 of the said Act, a ―permitted user‖ had
no right to institute a suit for infringement and, therefore, the plaintiff No.2
/ respondent No.2, who was, at best, merely a ‗permitted user', could not
institute any suit and, therefore, could not be a plaintiff or even a co-
plaintiff in an infringement action. Consequently, it was submitted that the
plaintiff No.2 cannot avail of the facility provided under Section 134(2) of
the said Act. It was further contended that the plaintiff No.1 / respondent
No.1, who was the registered proprietor of the trademark - ―EXXON‖, had
no place of business in India.
7. On the other hand, the respondents contended that Section 53 of the
said Act had to be read in continuation of Section 52 which allowed a
registered user of a trademark to institute a suit in his own name and the
only requirement was that a registered proprietor had to be made a
defendant. In this backdrop, it was contended that even if the respondent
No.2 / plaintiff No.2 had no right to institute a suit on its own, at best, it
was a case of mis-joinder and not a case of either rejection of the plaint or
return of the plaint for alleged want of the territorial jurisdiction. It was
further contended that the plaintiff No.1 / respondent No.1 was doing
business in India through its subsidiary / plaintiff No.2, who was a
permitted user. Since the plaintiff No.2 / respondent No.2 was a ―permitted
user‖, in view of the provisions of Section 48 (2), the permitted use of the
trademark - ―EXXON‖ by the plaintiff No.2 would be deemed to be the use
by the proprietor, i.e., the plaintiff No.1/ respondent No.1. Therefore, the
use of the trademark by the plaintiff No.2 would have to be deemed to be
the use of the trademark by the plaintiff No.1 for the purposes of
infringement.
8. The learned single Judge, while considering the rival contentions, set
out three questions which needed to be answered:-
―(i) whether the plaintiff no.l as the registered proprietor of the
trademark instituting this suit for infringement of registered
trademark can be said to actually and voluntarily reside or
carry on business or personally work for gain within the local
limits of jurisdiction of this Court within the meaning of
Section 134(2) by the reason of its subsidiary and permitted
user plaintiff no.2 having its registered office and carrying on
business within the territorial jurisdiction of this Court;
(ii) whether the plaintiff no.2, a permitted user a distinct from
registered user and though not entitled by virtue of Section 53
to institute any proceeding for infringement can be added as
plaintiff no.2 to a proceeding for infringement by the plaintiff
no.1 and whether the factum of the plaintiff no.2 having its
registered office within the local limits of jurisdiction of this
Court also vests jurisdiction in this Court within the meaning
of Section 134(2) of the Act; and,
(iii) what is the effect if any of the definition of ‗person' in the
explanation to Section 134(2) of the Act being an inclusive
one.‖
9. The learned single Judge answered the first two questions in favour
of the respondents and with regard to the third, he came to the conclusion
that the word ―person‖, as given in the explanation to Section 134(2) of the
said Act, had been defined in inclusive terms and was not restricted to a
registered proprietor and a registered user, but also included other persons.
The learned single Judge placed strong reliance in his reasoning on the
Supreme Court decision in the case of Exphar S.A. and Another v.
Eupharma Laboratories Limited and Another: 2004 (3) SCC 688. The
learned single Judge found that what had been held by the Supreme Court
in Exphar (supra) relating to Section 62(2) of the Copyright Act would
apply equally to Section 134(2) of the said Act irrespective of the fact that
plaintiff No.2 / respondent No.2 was neither the registered proprietor nor
the registered user of the trademark in question. This was so because all
that was necessary to be seen was whether the plaintiff No.2 could be
regarded as a ‗person instituting' a suit and whether it carried on business
within the jurisdiction of this court. As pointed out above, the learned
single Judge noted that the definition of ‗person', as appearing in the
Explanation to Section 134(2) of the said Act, was an inclusive one and not
limited to registered proprietors and the registered users and, therefore,
could quite easily include a permitted user, such as the plaintiff No.2 /
respondent No.2. It was also held by the learned single Judge that the use
by the permitted user would be deemed to be the use by the owner. From
this, the learned single Judge concluded that the proprietor of a trademark
would be deemed to carry on business where the trademark is used.
Consequently, the learned single Judge was of the view that the plaintiff
No.1 as the proprietor of the trade mark in question would be deemed to
carry on business in Delhi because of the permitted use by its subsidiary,
i.e., the plaintiff No.2 / respondent No.2 in Delhi.
10. Being aggrieved by the decision of the learned single Judge, the
present appeal has been filed. The counsel for the parties have been heard.
They have even furnished written submissions and notes. Before we
analyse the relevant provisions, it would be necessary to set them out:-
―Trade Marks Act, 1999.
2. Definitions and interpretation.-In this Act, unless the
context otherwise requires,-
xxxxx xxxxx xxxxx xxxxx xxxxx
(r) ―permitted use‖, in relation to a registered trade mark,
means the use of trade mark-
(i) by a registered user of the trade mark in relation to
goods or services-
(a) with which he is connected in the course of
trade; and
(b) in respect of which the trade mark remains
registered for the time being; and
(c) for which he is registered as registered user;
and
(d) which complies with any conditions or
limitations to which the registration of
registered user is subject; or
(ii) by a person other than the registered proprietor and
registered user in relation to goods or services--
(a) with which he is connected in the course of
trade; and
(b) in respect of which the trade mark remains
registered for the time being; and
(c) by consent of such registered proprietor in a
written agreement; and
(d) which complies with any conditions or
limitations to which such user is subject and
to which the registration of the trade mark is
subject;‖
xxxxx xxxxx xxxxx xxxxx xxxxx
―48. Registered users.--(1) Subject to the provisions of section
49, a person other than the registered proprietor of a trade mark
may be registered as a registered user thereof in respect of any
or all of the goods or services in respect of which the trade mark
is registered.
(2) The permitted use of a trade mark shall be deemed to be
used by the proprietor thereof, and shall be deemed not to be
used by a person other than the proprietor, for the purposes of
section 47 or for any other purpose for which such use is
material under this Act or any other law.‖
xxxxx xxxxx xxxxx xxxxx xxxxx
―52. Right of registered user to take proceedings against
infringement.--(1) Subject to any agreement subsisting
between the parties, a registered user may institute proceedings
for infringement in his own name as if he were the registered
proprietor, making the registered proprietor a defendant and the
rights and obligations of such registered user in such case being
concurrent with those of the registered proprietor.
(2) Notwithstanding anything contained in any other law, a
registered proprietor so added as defendant shall not be liable
for any costs unless he enters an appearance and takes part in
the proceedings.
53. No right of permitted user to take proceeding against
infringement.--A person referred to in sub-clause (ii) of clause
(r) of sub-section (1) of section 2 shall have no right to institute
any proceeding for any infringement.‖
xxxxx xxxxx xxxxx xxxxx xxxxx
―134. Suit for infringement, etc., to be instituted before
District Court.--(1) No suit--
(a) for the infringement of a registered trade mark; or
(b) relating to any right in a registered trade mark; or
(c) for passing off arising out of the use by the defendant of
any trade mark which is identical with or deceptively
similar to the plaintiff's trade mark, whether registered or
unregistered,
shall be instituted in any court inferior to a District Court having
jurisdiction to try the suit.
(2) For the purpose of clauses (a) and (b) of sub-section (1),
a ―District Court having jurisdiction‖ shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of
1908) or any other law for the time being in force, include a
District Court within the local limits of whose jurisdiction, at
the time of the institution of the suit or other proceeding, the
person instituting the suit or proceeding, or, where there are
more than one such persons any of them, actually and
voluntarily resides or carries on business or personally works
for gain.
Explanation.-For the purposes of sub-section (2), ―person‖
includes the registered proprietor and the registered user.‖
11. Since the learned single Judge had placed strong reliance on the
Supreme Court decision in Exphar (supra) which was one decided in the
backdrop of Section 62(2) of the Copyright Act, 1957, it may be necessary
for us to set out the provisions of Section 62 of that Act. It reads as under:-
―62. Jurisdiction of court over matters arising under this
Chapter.-(1) Every suit or other civil proceeding arising under
this Chapter in respect of the infringement of copyright in any
work or the infringement of any other right conferred by this
Act shall be instituted in the district court having jurisdiction.
(2) For the purpose of sub-section (1), a ―district court
having jurisdiction‖ shall, notwithstanding anything contained
in the Code of Civil Procedure, 1908, or any other law for the
time being in force, include a district court within the local
limits of whose jurisdiction, at the time of the institution of the
suit or other proceeding, the person instituting the suit or other
proceeding or, where there are more than one such persons, any
of them actually and voluntarily resides or carries on business
or personally works for gain.‖
12. We may straightaway take up the issue of whether, in the factual
context of the present case, the decision in Exphar (supra) would apply to
the present case. As pointed out above, Exphar (supra) was a case
pertaining to the Copyright Act, 1957 and the decision rendered therein
pertained to Section 62(2) thereof. We may point out that the questions
which arise for consideration in the present case do not arise under the
Copyright Act. The concepts are somewhat different. There is no concept
of user, permitted or registered, under the Copyright Act, 1957. On the
other hand, there is the concept of an exclusive licencee as defined in
Section 2(1)(j) of that Act. Section 55 of the Copyright Act, 1957 provides
for civil remedies for infringement of copyright and stipulates that the
‗owner' of the Copyright shall, except as otherwise provided in that Act, be
entitled to all such remedies by way of injunction, damages, accounts and
otherwise as are or may be conferred by law for the infringement of a right.
In other words, the ‗owner' of the copyright could sue for infringement of
copyright. Section 54, which falls under Chapter XII, which deals with
civil remedies, defines the ―owner of a copyright‖ to include an exclusive
licencee. The expression ―exclusive licencee‖ on the other hand, as pointed
out above, is defined in Section 2(1)(j) of the Copyright Act, 1957 to mean
a person or persons authorized by him, who holds a licence, to the
exclusion of all other persons (including the owner of the copyright)
conferring any right comprised in the copyright in a work.
13. Section 61 of the Copyright Act, 1957 also stipulates that in every
civil suit or other proceeding regarding infringement of the copyright
instituted by an exclusive licencee, the owner of the copyright shall, unless
the court otherwise directs, be made a defendant and where such owner is
made a defendant, he shall have the right to defend the case of the exclusive
licencee.
14. We have referred to all these provisions of the Copyright Act, 1957
to indicate that the concept of the ―person instituting a suit‖ under the
Copyright Act, 1957 is different from that of a ―person instituting a suit‖
under the Trade Marks Act. In the present context, the major part of the
controversy pertains to the consideration to be given to the expression
―person instituting a suit‖. This has to be considered in the context of the
Trade Marks Act and in the backdrop of the expressions ―proprietor of the
registered trademark‖, ―registered user‖ and ―permitted user‖. These
expressions do not find place in the Copyright Act, 1957 and, therefore, to
decide the present case on the basis of what has been held by the Supreme
Court in Exphar (supra) in the context of the Copyright Act, 1957 would
not be apposite.
15. We now come to the provisions of the Trade Marks Act, 1999 which
we have extracted above. It is abundantly clear that ‗permitted use', as
defined in Section 2(1)(r) of the said Act is referable to a ‗registered user'
as also to a person other than the ‗registered proprietor' and the ‗registered
user'. Section 48(1) stipulates that, subject to Section 49 (which provides
for registration as a registered user), a person other than a registered
proprietor of a trade mark, may be registered as a registered user. Section
48(2) provides that the permitted use of a trade mark shall be deemed to be
used by the proprietor thereof and shall be deemed not to be used by a
person other than the proprietor for the purposes of Section 47 (which
relates to the removal from the register and imposition of limitations on the
ground of, inter alia, bona fide non-user of the trade mark) or for any other
purpose for which such use is material under the said Act or any other law.
All that this provision indicates is that the permitted use of a trade mark by
a registered user or any other person other than the registered proprietor and
registered user would be deemed to be used by the proprietor of the trade
mark and not by anybody else. The appellants had argued that the use of
the expression ―permitted use‖ in Section 48(2) was referable only to a
registered user because Section 48 was in respect of the registered users
alone. We need not decide this issue and we shall proceed in this case on
the assumption that the permitted use of a trade mark by a permitted user
would also be deemed to be used by the proprietor thereof. In other words,
the permitted use of the trade mark ‗EXXON' by the plaintiff No.2 would
be deemed to be used by the plaintiff No.1.
16. Sections 52 and 53 are extremely important for the purposes of this
case. Section 52(1) provides that subject to any agreement subsisting
between the parties, a registered user may institute proceedings for
infringement in his own name as if he were the registered proprietor. Of
course, in such eventuality, the registered proprietor has to be made a
defendant. Furthermore, in such cases, the rights and obligations of such a
registered user would be concurrent with those of the registered proprietor.
Since the plaintiff No.2 / respondent No.2 is admittedly not a registered
user, Section 52(1) does not come into play insofar as it is concerned. But,
what is important is that it has to be kept in mind that a registered user has
been given the right to institute the proceedings for infringement in his own
name as if he were the registered proprietor. Section 52(2) also deals with a
case where a registered user has instituted a proceeding in his own name
and does not arise for consideration in the present case. Section 53, in clear
departure from Section 52, stipulates that a person referred to in Section
2(1)(r)(ii) shall have no right to institute any proceeding for any
infringement. The person referred to in Section 2(1)(r)(ii) is a person other
than the registered proprietor and registered user and would obviously
include a ‗permitted user'. In other words, the only persons who can bring
a suit for infringement of a trade mark would be the registered proprietor
himself or the registered user and certainly not a permitted user. Therefore,
in our view, the submission made by the learned counsel for the appellant
that the suit could not have been instituted by the respondent No.2 /
plaintiff No.2 is correct.
17. Section 134 of the said Act has already been extracted above. It may
be seen that Section 134(1) refers to three kinds of suits:-
a) for the infringement of a registered trade mark;
b) relating to any right in a registered trade mark;
c) for passing off arising out of use by the defendant of any trade
mark which is identical with or deceptively similar to the
plaintiff's trade mark, whether registered or unregistered.
Section 134(2), however, relates only to the suits specified in clauses (a)
and (b) above of sub-section (1). In other words, Section 134(2) of the said
Act is relatable only to suits for infringement of a registered trade mark or
for suits relating to any rights in a registered trade mark. It does not relate
to an action of passing off. It may be remembered that the present suit is
one of an action based on an alleged infringement of a registered trade
mark. The expression used in Section 134(2), which is of material
importance, is ―person instituting the suit‖. From our discussion above on
Section 53 of the said Act, it is evident that a permitted user cannot institute
a suit for infringement of a registered trade mark. Therefore, the plaintiff
No.2 / respondent No.2 by itself could not have filed the present suit.
18. We now come to the next expression which is of importance where
there are multiple plaintiffs. The expression is - ―where there are more
than one such persons‖. The expression ―such persons‖ would obviously
refer to persons instituting the suit and would obviously mean the persons
who are entitled to institute the suit. It would definitely, in our view, not
extend to persons who are disentitled to institute a suit or who do not have a
right to institute any proceeding for infringement. In other words, the
plaintiff No.2 / respondent No.2 cannot be covered by the expression
―person instituting the suit‖ or within the expression ―such persons where
there are more than one plaintiff‖.
19. At this juncture, we may also point out that the Explanation to
Section 134(2) provides that for the purposes of sub-section (2), ―person‖
includes the registered proprietor and the registered user. According to the
learned single Judge and the respondents, this is an inclusive definition and
is not a restrictive one. It is also the case of the respondents that the word
―person‖ would also include a ―permitted user‖. On the contrary, the
contention of the appellants is that it is an exhaustive one and the reference
to person could only be to a registered proprietor and a registered user. In
our view, both submissions are not correct. It is true that the definition of a
―person‖, as given in the Explanation cannot be restricted to ‗registered
proprietor' and the ‗registered user' and on the face of it, it is a definition of
the inclusive kind and not of a restrictive or exhaustive nature. We say so
because Section 134(2) deals not only with cases of infringement of a
registered trade mark as indicated in clause (a) of sub-section (1) of Section
134, but also pertains to suits relating to any right in a registered trade mark
which may, if permitted by other provisions of the said Act, be instituted by
persons other than the registered proprietor and the registered user. But, it
would certainly not include a permitted user suing for an infringement of a
trade mark. This is so because there is an express prohibition under Section
53 of the said Act. The learned single Judge seems to have lost sight of this
aspect of the matter. If, indeed, the word ―person‖ would include a
permitted user, then it would mean that while on the one hand Section 53
bars such a person from instituting any proceeding for infringement,
Section 134(2) would yet regard him as a person instituting the suit. This
interpretation would be contrary to the terms of the enactment.
Consequently, while we are of the view that the word ―person‖ as appearing
in Section 134(2) is not restricted to registered proprietor and registered
user, it certainly does not include a permitted user in a suit for infringement
of a registered trade mark.
20. Therefore, the respondent No.2 / plaintiff No.2 could not have been
added as a co-plaintiff. Let us assume that we accept the alternative plea of
the respondents that this may be treated as a case of mis-joinder and
consequently, let us assume that we delete respondent No.2 as a co-
plaintiff. It is the case of the respondents that even then this court would
have territorial jurisdiction to entertain the suit. Hypothetically speaking, if
the suit was instituted only by the respondent No.1 / plaintiff No.1, it
having no place of business in India, it would have to demonstrate that not
only did it carry on business through the respondent No.2 in Delhi and that
the cause of action also arose in Delhi before this court could be said to
have territorial jurisdiction.
21. In Ultra Home Construction Pvt Ltd v. Purushottam Kumar
Chaubey & Others, in FAO(OS) 494/2015 decided on 11.01.2016, a
Division Bench of this court had considered the issue of territorial
jurisdiction in the backdrop of Section 134(2) of the said Act. While doing
so, the Division Bench had, inter alia, considered the decision of the
Supreme Court in Indian Performing Rights Society Limited v. Sanjay
Dalia: 2015 (10) SCC 161 as also the earlier Supreme Court decision in the
case of Dhodha House v. S.K. Maingi: 2006 (9) SCC 41. The Division
Bench observed as under:-
―13. It is evident from the above observations that the
interpretation given to the expression ―carries on business‖ in
the context of a defendant under section 20 of the Code has also
been employed in the context of a plaintiff under the said
sections 134(2) and 62(2). Thus, in addition to the places where
suits could be filed under section 20 of the Code, the plaintiff
can also institute a suit under the Trade Marks Act, 1999 and
the Copyright Act, 1957, as the case may be, by taking
advantage of the provisions of section 134(2) or section 62(2),
respectively. Both the latter provisions are in pari materia.
Under these provisions four situations can be contemplated in
the context of the plaintiff being a corporation (which includes a
company). First of all, is the case where the plaintiff has a sole
office. In such a case, even if the cause of action has arisen at a
different place, the plaintiff can institute a suit at the place of
the sole office. Next is the case where the plaintiff has a
principal office at one place and a subordinate or branch office
at another place and the cause of action has arisen at the place
of the principal office. In such a case, the plaintiff may sue at
the place of the principal office but cannot sue at the place of
the subordinate office. The third case is where the plaintiff has
a principal office at one place and the cause of action has arisen
at the place where its subordinate office is located. In this
eventuality, the plaintiff would be deemed to carry on business
at the place of his subordinate office and not at the place of the
principal office. Thus, the plaintiff could sue at the place of the
subordinate office and cannot sue (under the scheme of the
provisions of section 134(2) and 62(2)) at the place of the
principal office. The fourth case is where the cause of action
neither arises at the place of the principal office nor at the place
of the subordinate office but at some other place. In this case,
the plaintiff would be deemed to carry on business at the place
of its principal office and not at the place of the subordinate
office. And, consequently, it could institute a suit at the place
of its principal office but not at the place of its subordinate
office. All these four cases are set out in the table below for
greater clarity:
S.No. Place of Place of Place where Place where
Plaintiff's Plaintiff's cause of Plaintiff can
Principal Subordinate action arose additionally
Office (Sole /Branch sue under
office in Office section 134(2)
s.no.1) and section
62(2)
1 A -- C A
2 A B A A
3 A B B B
4 A B C A
‖
22. Let us see as to under which of the 4 situations, if any, referred to in
the table in the above extract does the present case fall ? For this, let us
assume that the office of the respondent No.2 is the respondent No.1's
subordinate / branch office. The place of the plaintiff No.1's principal
office is in USA, whereas the cause of action, if at all, arose in Kolkata.
Therefore, S.No.1 would have normally applied had the plaintiff No.1 been
an Indian company and its principal place of business been in Delhi. But,
the plaintiff No.1 is a company registered in USA and, therefore, it cannot
take advantage of Section 134(2) of the said Act which is available only to
suits under the Trade Marks Act, 1999 filed in India. Similarly, it is not a
case falling under S. No.2 inasmuch as the cause of action did not arise at
the place of principal office of the plaintiff No.1. It is also not a case which
would fall under S.No.3, even if we assume that the office of the
respondent No.2 is the subordinate / branch office of the plaintiff No.1.
This is so because no part of the cause of action is alleged to have arisen in
Delhi. This leaves us with the case falling under S.No.4 where the plaintiff
no.1's principal office is in USA and its assumed subordinate office in New
Delhi. But the cause of action has arisen in Kolkata. Unfortunately, the
place where the plaintiff No.1 could additionally sue under Section 134(2)
would then be in USA which is not available to it because Section 134(2) is
in respect of the suits filed in India alone.
23. The result of the above discussion is that even if we assume that the
use of the trade mark by the respondent No.2 is to be the deemed use of the
trade mark by the respondent No.1 / plaintiff No.1 and that the office of the
respondent No.2 in Delhi is the subordinate / branch office of the
respondent No.1, the additional benefit of Section 134(2) of the said Act
would not be available to the plaintiff No.1 / respondent No.1.
24. Consequently, this court would not have territorial jurisdiction to
entertain the present suit even if the aforesaid assumptions, which are all in
favour of the respondents, are made. The appeal is, therefore, allowed and
the impugned judgment is set aside. The plaint be returned to the plaintiff
for filing in the court having jurisdiction in the matter. There shall be no
order as to costs.
BADAR DURREZ AHMED, J
January 04, 2017 ASHUTOSH KUMAR, J
dutt
