Delhi High Court
G.D Foods Mfg (India) Pvt Ltd. vs Zihawa Foods Pvt Ltd. on 17 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 17.05.2017
+ CS(OS) 813/2013, CC No. 83/2013, Crl.M.A.17221/2013, I.A.
17871/2013 (O 6 R 17)
G.D FOODS MFG (INDIA) PVT LTD. ..... Plaintiff
Through: Mr. Mohan Vidhani, Mr.Joseph
Koshy, Ms. Divyani Singh and
Mr. Rahul Vidhani and Ms.Sheetal
Srivastava, Advocates
versus
ZIHAWA FOODS PVT LTD. ..... Defendant
Through: Mr. Ashutosh Dubey,
Mr.Veerabhadraian and Mr.Sharana
Gouda Patil, Advocates
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
I.A. 18308/2013 (O VII R 11 (a) (b) & (d) CPC)
1. Vide this application, the defendant has sought the dismissal of the
suit alleging that since the plaintiff is not the registered owner of the
trademark TOPS, his suit for infringement of the trademark is not
maintainable. It is submitted that the plaintiff's claim that it is an assignee is
not maintainable, as in view of Section 45 of the Trade Marks Act, 1999, an
assignee does not become the owner of a trademark unless it is registered in
his name and his name is entered into the register. It is further submitted that
CS(OS) No.813/2013 Page 1
the assignment could be only by a registered document and the plaintiff has
not made any contention that any such document was issued to him by the
owner of the trademark nor he has placed on record any document to support
his claim of an assignee. It is further contended that the defendant is a
Chennai based company and is not doing any business in Delhi and,
therefore, this Court has no territorial jurisdiction. It is further submitted that
since the plaintiff is not a registered owner of the trademark and since he
cannot file a suit for infringement of his trademark, Section 134 of Trade
Marks Act, 1999 has no relevance and the jurisdiction of the Court has to be
ascertained under Section 20 of the Civil Procedure Code (hereinafter
referred to as 'the CPC') which requires that a suit can be filed only where
the defendant is carrying on its business or working for gain or actually or
voluntarily residing or where a cause of action has arisen. It is further
contented that as per the plaintiff's own contention in the plaint, the
defendant is Chennai based and the plaintiff has not averred that the
defendant is carrying on any business activity in Delhi and merely because
the plaintiff has averred that the defendant has the intention to sell its goods
in Delhi, this bald averment is not sufficient to give jurisdiction to the Delhi
Courts. It is further submitted that the plaintiff has also sought relief of
CS(OS) No.813/2013 Page 2
passing off of the goods by the defendant, but it is also a fact that the
defendant is not doing any business in Delhi and the plaintiff's apprehension
that the defendant is likely to sell its product in Delhi, is not sufficient to
constitute cause of action for a suit of passing off and also does not confer
jurisdiction on this Court to entertain a suit for passing off. It is submitted
that in para 7 of the plaint, the plaintiff has given the details of the
applications filed for the registration of trademark TOPS in various classes
which also discloses that the application bearing No.751963 filed on
20.01.1997 for class 30 was still pending and no registration qua that
application has been issued. Also, the registration certificates filed by the
plaintiff-company shows that the applications were filed in the year 2002 for
the products mentioned therein and no registration certificate has been
issued by the authorities till 2005. It is also stated in the plaint that the
plaintiff had opposed few applications filed by M/s Kenwel Foods Pvt. Ltd.
for grant of registration under Section 18 of the Act, therefore, the plaintiff
had the knowledge that the predecessor of the defendant-company and the
defendant-company are using the trademark TOPPS continuously
uninterruptedly since 1986, but this information was suppressed and a
frivolous suit has been filed making false and scandalous statements that
CS(OS) No.813/2013 Page 3
they were using the trademark TOPS since 1984. It is further submitted that
the averments made in para 17 of the plaint that the plaintiff came to know
of the use of trademark TOPPS by the defendant in the second week of
April, 2013 is also a false statement. It is submitted that a false averment is
also made in the plaint that the plaintiff came to know of the applications
No.2403780 and 2403781 of the defendant for registration of their
trademark in class 29 and 30 respectively only on 30.09.2012. All the other
averments in the plaint are also false. Relying on the averments in the
paragraphs 18, 19 and 20, it is submitted that all these averments are false
and the suit is barred by limitation. It is further submitted that the plaintiff
has not placed any material evidence to establish that they had conducted
research work in this field. No laboratory reports have been submitted. It is
submitted that it was the defendant's predecessor company who had done
extensive research and on the basis of that, launched the products which are
sold under the trademark TOPPS since 1986 and they have not received any
complaint regarding the quality of the product and they have good customer
line, including three star, five star, seven star hotels in the south zone of
India. It is submitted that it was plaintiff who had infringed the defendant's
trademark TOPPS and the copyright of the defendant-company and have
CS(OS) No.813/2013 Page 4
filed this suit with the sole purpose and intention to escape the legal hurdle.
The defendant-company has a legitimate right over the trademark TOPPS. It
is submitted that although the averments in the plaint shows that the plaintiff
was aware of infringement of its trademark in the year 2008, still they have
filed the suit after five years of the said knowledge and, therefore, the suit is
barred by limitation. It is further submitted that no document has been
placed to support the statement that the defendant-company is planning any
business in Delhi. It is further submitted that proper Court Fee has not been
paid.
2. In reply to this application, the plaintiff has submitted that application
is not maintainable and liable to be rejected being an abuse of the process of
law. It is submitted that plaint has sufficiently disclosed the cause of action.
Each and every sale conducted by the defendant under infringed trademark
gives separate cause of action. It is submitted that proper Court fee in
accordance with the Entry No. 30 of Schedule 2 has been paid. It is further
submitted that in its counter-claim, the defendant has also valued his claim
in a similar manner invoking Entry 30 of Schedule 2. It is further submitted
that plaintiff undertakes to make up the deficiency in court fee, if any. It is
further submitted that plaintiff has not suppressed any material particulars
CS(OS) No.813/2013 Page 5
and has not misrepresented and committed any fraud upon this Court. It is
denied that defendant is using the trademark continuously since 1986. It is
submitted that the plaintiff was not aware that the defendant is the
successor/assignee of M/s Kenwel Foods Pvt. Limited at the time when the
plaintiff opposed the registration of the trademark since the defendant did
not file any Assignment Deed in his favour. It is further submitted that this
Court has the jurisdiction under Section 134(1) of Trade Marks Act, 1999
and also under Section 20 of CPC. It is submitted that application is liable to
be dismissed.
3. Mr. Ashutosh Dubey, learned counsel appears on behalf of the
applicant/defendant, has confined his argument only on two contentions;
firstly that there is no cause of action in favour of the plaintiff to file the
present suit and secondly that this Court has no territorial jurisdiction. The
contention raised in the application qua limitation and valuation of the suit
and payment of the court fee are not pressed.
4. Mr Dubey has argued that this Court has no territorial jurisdiction and
has relied on ONGC vs. Utpal Kumar Basu & Ors. (1994) 4 SCC 711. It is
argued that the Supreme Court has clearly held therein that where no part of
a cause of action arises within the territorial jurisdiction of the Court where
CS(OS) No.813/2013 Page 6
the petition `has been filed, then the said Court has no jurisdiction. It is also
argued that in the case of Dhodha House vs. S.K. Maingi (2006) 9 SCC 41
in para 31, the Supreme Court has clearly held that a cause of action will
arise only when a registered trademark is used and not when an application
is filed for registration of the trademark and since the plaintiff is not the
owner of the trademark, he has no cause of action in his favour. It is further
argued that these findings have been reiterated by the Supreme Court in K.
Narayanan & Anr. vs. S. Murali AIR 2008 SC 3261. Relying on K.D.
Sharma vs. Steel Authority of India & Ors. (2008) 12 SCC 481, it is further
argued that the Court has the jurisdiction to dismiss the petition where the
Court is of the opinion that the petition is abuse of the process of Court or
law or where a fraud has been played upon the Court. Learned counsel has
also argued that the object of passing off is to protect the goodwill and the
goodwill can only be affected when the defendant markets his goods and
infringed the trademark of the plaintiff and mere advertisement in the Trade
Mark Journal or preferring the application or even registration of a
trademark at a particular place does not create any cause of action of passing
off in favour of the plaintiff. It is only when the defendant uses the
impugned trademark that the cause of action arises. It is submitted that it is
CS(OS) No.813/2013 Page 7
not the claim of the plaintiff that the defendant is passing off its goods in
Delhi and, therefore, no cause of action in favour of the plaintiff is arisen in
Delhi and this Court has no jurisdiction and has relied on the findings in the
case of AVR Engineers vs. Sharma Moulding Works & Ors. 2008 (38)
PTC 243 (DEL). Learned counsel has also relied on M/s Tata Sia Airlines
Limited vs. M/s Vistara Voyages 2015(4) K.C.C.R. 2897 (KAR) and
contended that in the said case also the Karnataka High Court relying on the
various decisions of the Supreme Court, including the findings in Dhodha
House (supra) has held that the jurisdiction for passing off has to be
determined under Section 20 of the CPC and where no part of the cause of
action has arisen within the jurisdiction of a Court and if the defendant is not
residing or carrying on business within the jurisdiction of that Court, such
Court lacks jurisdiction to entertain a suit of passing off. It is further
contended that in M/s Tata's Sia (supra) case, the Court has also held that a
suit for infringement can be filed only by a registered owner of the said
trademark. Filing of an application for registration of the trademark before
the concerned authorities, does not ipso facto give rise to a cause of action to
file a suit for infringement of the trademark. It is further argued that in
Kusum Ingots & Alloys Ltd. vs. U.O.I. (2004) 6 SCC 254, the Supreme
CS(OS) No.813/2013 Page 8
Court has clearly held that in order to determine the territorial jurisdiction,
the criteria where the cause of action has arisen is to be considered and such
Courts within whose territorial jurisdiction the cause of action has arisen
would have the jurisdiction.
5. Learned counsel for the plaintiff has argued that this Court has the
jurisdiction. It is argued that the findings in the cases relied upon by the
defendant were given on the facts of those cases and this case is
distinguishable as the plaintiff owns the trademark of the company which it
took over along with its goodwill and the trademarks while in these cases
relied upon by the applicant/defendant, the petitioners therein were not the
owners of the registered trademark and their applications were pending
registration. It is further submitted that the plaintiff has the registered office
in Delhi and therefore by virtue of Section 134 of Trade Marks Act, this
Court has the jurisdiction. It is further submitted that this Court in the case
Raj Kumar Prasad & Anr. vs. Abbott Healthcare Pvt. Ltd., FAO(OS)
281/2014, decided on 10.09.2014 has dealt with the question whether the
registered proprietor of a trademark can sue another registered proprietor of
a trademark alleging deceptive similarity and Court held that such a suit is
maintainable and for reaching to this conclusion, the Court has relied on the
CS(OS) No.813/2013 Page 9
findings of this Court in Clinique Laboratories LLC and Anr. V. Gufic
Limited and Anr. 2009 (41) PTC 41 (Del) and Rajnish Aggarwal & Ors. vs.
M/s Anantam 2010(43) PTC 442 (Del). It is argued that the contention of
the defendant that the plaintiff's perception that the defendant would sell
goods in Delhi, does not constitute cause of action has been dealt by this
Court in Pfizer Products, Inc vs. Rajesh Chopra and Ors 2006(32) PTC
301 (Del.) wherein this Court discussed the findings of the Supreme Court in
Dhodha House (supra) and M/s Jawahar Engineering Company & Ors vs.
Ghaziabad V. M/s Jawahar Engineering Pvt. Ltd. Sri Rampur Distt.
Ahmednagar 1983 PTC 207 and concluded in para 12 as under:-
"12. The other aspect of the matter is that a threat of selling
the offending goods in Delhi would in itself confer
jurisdiction in the courts in Delhi to entertain a suit
claiming an injunction in respect thereof. Whether the
threat perception is justified or not is another matter which
has to be considered and decided upon in the application
filed by the plaintiff under Order 39 Rules 1 and 2 or on
merits when the suit is taken up for disposal. Insofar as
Order 7 Rule 10 is concerned, assuming that whatever is
stated in the plaint is correct, one would have to also
assume that the threat or the intention of the defendants to
sell and offer for sale the offending goods in Delhi is also
correct. Therefore, if the threat exists then this court would
certainly have jurisdiction to entertain the present suit."
CS(OS) No.813/2013 Page 10
6. On these submissions, it is argued that the plaintiff has the cause of
action and this Court has the jurisdiction and the application is liable to be
dismissed.
7. I have heard the arguments and have given thoughtful consideration to
the rival contentions. It is a settled proposition of law that while dealing with
an application under Order 7 Rule 11 CPC, the Court has to confine itself to
the averments made in the plaint and the documents filed along with it. The
cause of action is not defined anywhere, however, it consists of bundle of
facts on the basis of which a suit has been instituted seeking remedy in law
against another person. Even if the plaintiff has a small cause of action, the
plaintiff can sue the other person for that part of cause of action.
8. The meaning of cause of action has although discussed by the Apex
Court in various cases, however, in Kusum Ingots & Alloys (supra), the
Court has held as under:-
"6. Cause of action implies a right to sue. The material
facts which are imperative for the suitor to allege and
prove constitutes the cause of action. Cause of action is
not defined in any statute. It has, however, been
judicially interpreted inter alia to mean that every fact
which would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment
of the Court. Negatively put, it would mean that
everything which, if not proved, gives the defendant an
immediate right to judgment, would be part of cause of
CS(OS) No.813/2013 Page 11
action. Its importance is beyond any doubt. For every
action, there has to be a cause of action, if not, the
plaint or the writ petition, as the case may be, shall be
rejected summarily.
In this case, the Apex Court in para 11 has also relied on findings in
the case Mussummat Chand Kour vs. Partab Singh which is reproduced as
under:-
11. In Mussummat Chand Kour vs. Partab Singh
[(1887-38) 15 I.A. 156], it was held: [I.A. pp. 157-58)
"The cause of action has no relation whatever to the
defence which may be set up by the defendant, nor does
it depend upon the character of the relief prayed for by
the plaintiff. It refers entirely to the grounds set forth in
the plaint as the cause of action, or, in other words, to
the media upon which the plaintiff asks the Court to
arrive at a conclusion in his favour."
9. The Supreme Court again in the subsequent case Alchemist Ltd and
Anr vs. State Bank of Sikkim and Others (2007) 11 SCC 335 has discussed
the meaning of cause of action and held as under:-
"15. It may be stated that the expression 'cause of action' has
neither been defined in the Constitution nor in the Code of Civil
Procedure, 1908. It may, however, be described as a bundle
of essential facts necessary for the plaintiff to prove before he
can succeed. Failure to prove such facts would give the
defendant a right to judgment in his favour. Cause of action thus
gives occasion for and forms the foundation of the suit.
28. From the aforesaid discussion and keeping in view the ratio
laid down in catena of decisions by this Court, it is clear that for
the purpose of deciding whether facts averred by the petitioner-
CS(OS) No.813/2013 Page 12
appellant, would or would not constitute a part of cause of
action, one has to consider whether such fact constitutes
a material, essential, or integral part of the cause of action. It is
no doubt true that even if a small fraction of the cause of action
arises within the jurisdiction of the Court, the Court would have
territorial jurisdiction to entertain the suit/petition. Nevertheless
it must be a 'part of cause of action', nothing less than than."
10. It is a settled proposition of law that the Court within whose
jurisdiction even a part of cause of action arises has the jurisdiction to
entertain the suit. The Court has to determine if the plaintiff has any cause of
action, if yes, does any part of such cause of action arises in his favour
within the jurisdiction of this Court. The plaintiff has filed the suit on two
grounds; firstly infringement of his registered trademark and secondly
passing off of his goods by defendant.
11. For the purpose of infringement of the registered trademark, Section
134 of the Trade Marks Act, 1999 states that the Court within whose
jurisdiction the plaintiff is actually and voluntarily resides or carries on
business or personally works for gain has the jurisdiction notwithstanding
anything contained in CPC or any other law for the time being in force. It is
also a settled proposition of law that while dealing with the application
under Order 7 Rule 11 CPC, the Court has to rely on the averments in the
plaint only. The defence taken by the defendant is not to be considered. The
CS(OS) No.813/2013 Page 13
plaintiff has made the following averments in the plaint and has given the
current status of the registration of its trademarks in para 7, 9 and 10 which
are reproduced as under:-
"7.
Appl-No Trade App-DT Class Status
Mark
751963 Tops, 20/01/1997 30 Regd.
Continenta
l sauce
1145806 Tops 24/10/2002 34 Opposed
1145807 Tops 24/10/2002 1 Regd.
1145808 Tops 24/10/2002 2 Regd.
1145809 Tops 24/10/2002 3 Regd.
1145810 Tops 24/10/2002 4 Regd.
1145811 Tops 24/10/2002 5 Regd.
1145812 Tops 24/10/2002 6 Regd.
1145813 Tops 24/10/2002 7 Regd.
1145814 Tops 24/10/2002 8 Regd.
1145815 Tops 24/10/2002 9 Regd.
1145816 Tops 24/10/2002 10 Regd.
1145817 Tops 24/10/2002 11 Regd.
1145818 Tops 24/10/2002 12 Opposed
1145819 Tops 24/10/2002 13 Regd.
CS(OS) No.813/2013 Page 14
1145820 Tops 24/10/2002 14 Regd.
1145821 Tops 24/10/2002 15 Regd.
1145822 Tops 24/10/2002 16 Regd.
1145823 Tops 24/10/2002 17 Regd.
1145824 Tops 24/10/2002 18 Regd.
1145825 Tops 24/10/2002 19 Regd.
1145826 Tops 24/10/2002 20 Regd.
1145827 Tops 24/10/2002 21 Regd.
1145828 Tops 24/10/2002 22 Regd.
1145829 Tops 24/10/2002 23 Regd.
1145830 Tops 24/10/2002 24 Regd.
1145831 Tops 24/10/2002 26 Regd.
1145832 Tops 24/10/2002 27 Regd.
1145833 Tops 24/10/2002 28 Regd.
1145834 Tops 24/10/2002 29 Regd.
1145835 Tops 24/10/2002 30 Opposed
1145836 Tops 24/10/2002 31 Regd.
1145837 Tops 24/10/2002 32 Regd.
1145838 Tops 24/10/2002 33 Regd.
1145843 Tops 24/10/2002 25 Regd.
1481259 Tops All 24/08/2006 29 Opposed
CS(OS) No.813/2013 Page 15
Time
1481260 Tops All 24/08/2006 30 Advertised
Time
1481263 Tops All 24/08/2006 32 New
Time Application
2309433 Tops 02/04/2012 29 New
Application
2311484 Tops 09/04/2012 30 New
Application
It is respectfully submitted that an application for the
restoration/renewal of the trade mark no.751963 is pending
adjudication with the office of Registrar of Trademarks which is
expected to be allowed in due course.
9. That the plaintiff is also the owner of the registered the
Copyrights in respect of the artistic works of TOPS continental
Sauce and TOPS under no. A- 54265/97 and A-54267/97. The
said registration under the Copyright Act are valid, subsisting and
in force.
10. That apart from the above registrations the plaintiff has filed
the applications for the registration of the copyright in different
labels with the Registrar of Copyrights and the applications are
pending registration. The plaintiff has been granted the No
Objection Certificate from the office of the Registrar of Trade
marks for the said labels and the Learned Registrar of Copyrights
shall be issuing the registration certificate in due course after the
completion of the formalities. In any case it is submitted that the
plaintiff claims ownership of the copyright in the labels and the
registration of the copyright with the Registrar of Copyrights is
not necessary requirement in order to claim infringement of
copyright."
CS(OS) No.813/2013 Page 16
12. The plaintiff has clearly averred that it has a registered trademark in
his favour which has been infringed by the defendant. It has also clearly
averred that it has a registered office within the jurisdiction of this Court in
para 31 of the plaint. The plaintiff has also clearly averred that the
defendant's goods are available in Delhi and are being sold at Delhi and so
part of cause of action has also arisen in Delhi. At this stage, while
determining the jurisdiction of the court, this Court only has to confine itself
upon the averments in the plaint. In the case ONGC (supra), the Court had
clearly held that the petitioner in that case did not disclose that even a part of
cause of action arose within the territorial jurisdiction of Calcutta High
Court and on those facts held that the Calcutta high Court has no
jurisdiction. In Dhodha House (supra) case, the Court has held that in the
case of passing off action, the place where the cause of action has arisen is
the place where the cause of action is said to have arisen. In this case the
averments in the plaint clearly show that the plaintiff has clearly alleged that
the goods of the defendants are being sold in Delhi and, therefore, the cause
of action has also arisen in Delhi. No doubt, in K. Narayanan & Anr.
(supra), the Supreme Court has held that mere filing of the application for
registration of trademark does not give rise to cause of action for passing off
CS(OS) No.813/2013 Page 17
action, however, the facts in that case were different than the facts of this
case. In that case the plaintiff was not the holder of a registered trademark,
but had merely applied for the registration while in the present case, in para
7, 8 and 10, the plaintiff has clearly averred that the trademark is registered
in the name of his predecessor company and on his taking over the said
company which owned the trademark, he now holds the registered
trademark.
13. It is argued on behalf of the plaintiff that the findings in AVR
Engineers (supra) are distinguishable. It is submitted that the Court gave its
finding that it had no jurisdiction on the ground that neither of the parties
was residing or carrying on business within the jurisdiction of this Court
while the plaintiff has clearly averred that it has a registered office within
the jurisdiction of this Court and it holds a registered trademark which is
being infringed and, therefore, by virtue of Section 134 of the Trade Marks
Act, 1999, this Court has the jurisdiction. These submissions of the learned
counsel for the plaintiff finds support from the averments in the plaint and,
therefore, the findings in the AVR Engineers (supra) are distinguishable.
14. In M/s Tata Sia Airlines Limited (supra), the Karnataka High Court
reached to conclusion that no part of cause of action had arisen within the
CS(OS) No.813/2013 Page 18
jurisdiction of Bengaluru Court. In that case, the only issue was whether the
cause of action for passing off had arisen within jurisdiction of Bengaluru
Court and the Court on the basis of facts of that case reached to the
conclusion that the Court had no jurisdiction under Section 20 of CPC as the
defendant was neither residing nor carrying on his business within the
jurisdiction of that Court. The Court further held on the facts of that case
that since the plaintiff was not the registered owner of the trademark and
merely had applied for registration, Section 134 of Trade Marks Act had no
application for determining the jurisdiction. In the present case, however, the
plaintiff has clearly averred that goods of defendant are being sold in Delhi
and also that the TOPS is a registered trademark owned by the plaintiff,
therefore, the findings of M/s Tata Sia Airlines Limited (supra) are
distinguishable. The findings in the case of Kusum Ingots & Alloys (supra)
has already been distinguished by this Court in the case Pfizer Products, Inc
(supra) and even otherwise as discussed above in the view of the clear
averments made in the plaint to the effect that plaintiff is the holder of the
registered trademark and that the goods of the defendants are being sold in
Delhi, this Court has the jurisdiction both under Section 134 of Trade Marks
Act as well as Section 20 of the CPC. This Court has also clearly held in the
CS(OS) No.813/2013 Page 19
case Pfizer Products, Inc (supra) that a suit is maintainable even if there is a
threat perception of its trademark being infringed by the defendants.
15. The defendant has also argued that this Court has no jurisdiction
because the defendant is not carrying on his business within the jurisdiction
of this Court and there is no averment to the effect that defendant is carrying
on business within jurisdiction of this Court. Reliance is placed on Haryana
Milk Foods Ltd. vs. Chambel Dairy Products 98(2002) DLT 359. There is
no dispute to the legal proposition that the question of jurisdiction has to be
decided on the basis of averments in the plaint and not on the basis of
defence. In the presence case, the plaintiff has clearly averred that cause of
action has arisen within the jurisdiction of this Court because the defendant
is selling its products in Delhi. Section 20 of the CPC confers jurisdiction to
the Court within whose jurisdiction the defendant is residing or carrying on
business or where the cause of action has arisen. The provision does not
require that only those Courts have the jurisdiction where the defendant is
residing or carrying on its business and where cause of action arisen.
(Emphasis supplied)
The Legislature has used the expression 'or' in Section 20 of CPC
therefore the courts where the defendants are residing or carrying on its
CS(OS) No.813/2013 Page 20
business or where the cause of action arises has the7 jurisdiction. If either of
the conditions exists, the court has the jurisdiction.
16. In para 30 of the plaint, the plaintiff has categorically averred as
under:-
"30. That the cause of action in the present suit arose in the
second week of April, 2013 when the plaintiff came to know
about the infringement of the trade mark of the plaintiff by the
defendant who is using the phonetically identical trade mark
"TOPPS". The cause of action is continuous one as each sales
conducted by the defendant under the infringing trade mark gives
the cause of action in favour of the plaintiff and against the
defendant."
17. The plaintiff has clearly averred that TOPS is a registered trademark
and defendant is using phonetically identical trademark 'TOPPS' and thus
infringing his trademark. The defence of the defendant cannot be considered
while deciding the application under Order 7 Rule 11 CPC. The averments
in the plaint have to be taken as gospel truth while dealing with application
under Order 7 Rule 11 CPC. It, therefore, cannot be said that the plaintiffs
have no cause of action in their favour.
18. There is no dispute to the settled proposition of law that the Court
while disposing of the application under Order 7 Rule 11 CPC has to confine
itself only on the averments in the petition. Regarding jurisdiction of this
Court, the plaintiff in para 31 of the plaint, averred as under:-
CS(OS) No.813/2013 Page 21
"31. That this Hon'ble Court has the jurisdiction to entertain and
try the present suit under Section 134(2) of the Trade Marks Act,
1999 as the registered office of the plaintiff is at Delhi at the
address given in the memo of parties. Besides under Section 20
of the Code of Civil Procedure as the goods of the defendants are
available in Delhi and are being sold in Delhi, thus the part of
cause of action has arisen in Delhi. The defendant in any cause
has all the intention of selling the goods in Delhi if claimed not to
have been sold so far as the applications which have been filed
by the defendant for the registration of the impugned trade mark
are for registration for whole of India."
19. In view of the settled proposition of law and also in view of the clear
averments in the plaint as discussed above, there is a cause of action in
favour of the plaintiff to file the present suit and this Court has the territorial
jurisdiction to entertain the present suit.
20. The application is hereby dismissed with no order as to costs.
CS(OS) 813/2013, CC No. 83/2013, Crl.M.A.17221/2013, I.A. 17871/2013
(O 6 R 17)
List before the Roster Bench on 19.05.2017
DEEPA SHARMA
(JUDGE)
MAY 17, 2017
BG
CS(OS) No.813/2013 Page 22
