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TMI Blog2017 (1) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... er's Choice". 3. The plaintiff has further claimed that its trademark and label "Officer's Choice" have acquired an enviable reputation and goodwill and is one of the highest selling brands. The plaintiff claims that it has incurred extensive expenditure to promote and publicize its product under the mark "Officer's Choice" which has now become a well-known trademark. The plaintiff is the registered proprietor of the trademark "Officer's Choice" in various classes and details of the same have been provided in paragraph 6 of the plaint. 4. Defendant no.1 is a company registered under the Companies Act, 1956 and has its registered office in the State of Maharashtra. The plaintiff also claims that defendant no.1 holds a sub-lease from defendant no.2 which has its registered office in the State of Andhra Pradesh. The plaintiff states that defendant no.1 is, inter alia, engaged in the business of bottling and manufacturing alcoholic beverages, including whisky under a trademark "Smart Choice" which the plaintiff claims, is deceptively and confusingly similar to the plaintiff's trademark "Officer's Choice". It is further alleged that the label used by defendant no. 1 is also substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an office at the said place. 9. Mr Rajiv Nayar, learned Senior Advocate appearing for the plaintiff/ non-applicant did not dispute that by virtue of the law as laid down by the Supreme Court in Indian Performing Rights Society Limited (supra), this Court would not have any jurisdiction if no part of cause of action had arisen within the territorial limits of this Court. He, however, contended that in the present case, the cause of action had arisen in Delhi since it was pleaded that defendant no.1 was a unit of Tilaknagar Industries Ltd. and Tilaknagar Industries Ltd. were located in Delhi. He also submitted that the plaintiff had also averred that it strongly apprehended that defendant no. 1 could launch their products in Delhi and there was a reasonable apprehension that defendant no.1 had a distribution network in Delhi. Thus, the plaint disclosed that a part of the cause of action had arisen within the territorial limits of Delhi. He submitted that the present plaint was in the nature of quia timet action where the cause of action included an apprehension of injury within the territorial jurisdiction of this Court and, therefore, this Court would have the jurisdiction to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited (supra) as followed by this Court in Ultra Home Construction (supra), merely because the plaintiff had an office in Delhi would not confer the jurisdiction on this Court to try the suit if the cause of action had not arisen within the territorial limits of this Court. He had, however, submitted that the present suit was a quia timet action and the plaintiff apprehended that defendant no. 1 would launch its product in Delhi and, thus, this Court would have the jurisdiction to try the suit. 14. In view of the above, the only question to be considered at this stage is whether the averments made in the plaint indicate that the present suit is a quia timet action and is based on the plaintiff's apprehension of infringement of trademark/copyright within the territorial limits of this Court. 15. In order to address the above controversy, it is necessary to examine the averments made in the plaint in some detail. 16. In paragraph one of the plaint, the plaintiff has averred that its registered office is located at the address in Mumbai and that its sales office is located within the seat of Delhi. It is also averred that the plaintiff carries on extensive business activities in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first became aware of the Defendants infringing activities in September, 2013 when the Plaintiffs representatives came across the Defendants' "Smart Choice" whisky product being sold in the state of Andhra Pradesh. The Plaintiff was shocked to learn that the impugned mark was strikingly similar to its proprietary trademark "Officer's Choice" and the impugned label with its red, white and gold colour combination, gold border and the word "Smart Choice" written in astylized gold font with a red shadow had a colour scheme/pattern which was a slavish imitation of the Plaintiff's label. The Defendants' product is therefore, an infringement of the Plaintiff's proprietary rights in its trademark and copyright vesting in the artistic work in the label. A bare perusal of the Defendants' product evidences an intention to pass off its products as being associated with and/or emanating from the Plaintiff. The Defendants have slavishly imitated and reproduced the overall get up, layout, color scheme and arrangement of features as the Plaintiff's label. Further, use by the Defendants' of the impugned mark and label reflects an intention to confuse unwary customers and to enca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sold through the same trade channels. The sale and distribution of the Defendants' whisky products bearing the impugned mark and label would result in tremendous harm and prejudice to the Plaintiff's business, rights and interests. The impugned label has been dishonestly copied by the Defendants such that a consumer of ordinary intelligence and imperfect recollection is likely to believe that the Defendants' products are emanating from and/or connected to the Plaintiff's line of products. 24. Further, the unauthorized use of the impugned mark and label by the Defendants whether for sale and distribution in India or for export and distribution abroad is an act of blatant infringement of the Plaintiff's statutory rights and also a violation of its common law rights. The Defendants obviously intend to misrepresent and pass off their products as those of the Plaintiff in a way so as to make undeserved profits by riding on the coattails of the Plaintiff and thereby, causing incalculable damage and losses to the Plaintiff's business reputation both in India and abroad. It is submitted that the Plaintiff's "Officer's Choice" trademark has acquired international reputation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned mark and label "Smart Choice" in the State of Andhra Pradesh. The Plaintiff has approached this Hon'ble Court at the earliest possible opportunity. The cause of action against the Defendants is continuing from day to day till the filing of the present suit and will continue until the Defendants are restrained by an order of injunction by this Hon'ble Court." 22. However, in paragraph 27 of the plaint - which is the paragraph regarding the jurisdiction - the plaintiff has averred that it has reasonable apprehension that the defendants have a distribution network in Delhi or are likely to sell the products bearing the impugned mark and label within the jurisdiction of this Court and, therefore, this Court would have the necessary jurisdiction by virtue of Section 20 of CPC. 23. Although, it has been averred that the plaintiff has an apprehension that defendants would sell their products within the territories of Delhi, the said apprehension is not substantiated by any material which would indicate a reasonable ground for the plaintiff to apprehend the same. 24. Be that as it may, the principal question to be addressed that still remains is whether the averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pated mischief and not to undo a wrong or mischief when it has already been done. In such an action the Court, if convinced, may interfere by appointment of receiver or by directing security to be furnished or by issuing an injunction or any other remedial process." 28. As stated above, the cause of action in the present case - even as described by the plaintiff in paragraph no. 26 of its plaint - is not of any apprehended injury by future action but essentially stems from the use of the trademark/label "Smart Choice" by the defendant in praesanti. It is alleged that defendant no.1 is using the trademark in Andhra Pradesh, which was discovered by the plaintiff in 2013; and this is the cause of action for the plaint as pleaded by the plaintiff. 29. A mere bald statement at the end of the plaint which has no foundation in the entire plaint cannot be accepted as indicating the cause of action; the averments made in the plaint must, ex-facie, disclose the cause of action. Thus, the contention that part of cause of action has arisen within the territories of this Court since the plaintiff has made a bald statement that it apprehends that defendant would launch its product in De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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