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HEINZ INDIA PVT. LTD Versus M/s. SHREJEE REMEDIES

2013 (4) TMI 890 - DELHI HIGH COURT

CS(OS) No. 2367/2012 - Dated:- 29-4-2013 - M.L. MEHTA For the Appellant: Ms. Anuradha Salhotra and Mr. Zeeshan Khan, Advocates For the Respondent: Mr. R. Bhansali , Mr. Chander Shekar Patney, Mr. D.C Dani, M.L. MEHTA, J. 1. The instant order disposes the application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Civil Procedure Code (for short the Code‟) and an application filed by the defendant under Order VII Rules 10 and 11 of the Code. 2. The suit has been filed by the p .....

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ate of Pennsylvania, USA. The plaintiff has had its presence in the Indian market since its incorporation in India in 1994 and manufactures well-known products such as Complan, Glucon-D, Heinz Tomato Ketchup, Sampriti Ghee etc and markets the prickly heat powder NYCIL. 4. The plaintiff has contends that the word mark NYCIL has been registered in India since the year 1951 in favour of British Drug Houses Ltd. under the trade mark registration number 147987 in class 5 in respect of medicinal and p .....

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0, 1994. Heinz Italia, on September 17, 1997 applied for and obtained registration for the trade mark NYCIL (Label) under No. 774599 in class 5 in respect of medicinal and pharmaceutical preparations. Both these marks were assigned to the plaintiff vide a Deed of Assignment dated February 1, 2005. An application for the registration of the plaintiff as a subsequent proprietor of the said marks was filed on February 8, 2010 and is pending with the Registrar of Trade Marks. 5. The plaintiff submit .....

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ets and promotional literature to the dealers as well as print and electronic media. The plaintiff also submits its Annual Marketing/Promotional Figures in India for the said product for the period 2002-2011. It contends that as a result of such extensive user, registrations, vast publicity, and excellent quality of the goods, the trade mark NYCIL has become exclusively associated with the plaintiff‟s products. 6. The plaintiff‟s grievance is with respect to its product NYCIL CLASSIC .....

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ve. It contends that the mark NEHACIL is phonetically and structurally similar to the plaintiff‟s prior used and registered trade mark NYCIL and is therefore violative of the plaintiff‟s trade mark. 7. The plaintiff submits that it issued a Cease and Desist Notice dated July 14, 2008 to the defendant, advising it of its earlier and statutory rights in the trade mark NYCIL and asking it to cease the use of the impugned trade mark with immediate effect, but did not receive any response .....

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e chances of confusion in the minds of the purchasing public, it changed its trade dress and get-up of the NYCIL container. The plaintiff also continued to try and get the defendant to amicably settle the matter, by adopting a trademark which was different from that of the plaintiff‟s. The plaintiff submits, that efforts to settle with the defendant continued till as late as March-April, 2012 as evidenced from the plaintiff‟s email dated April 10, 2012. The defendant however, failed .....

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k on the ground that the mark is in violation of Section 11 of the Trade Marks Act, and was wrongly remaining on the Register. 9. In the instant suit seeking permanent injunction against passing off and damages under Section 27 of the Trade Marks Act, the plaintiff submits that the cause of action arose in July, 2008 when it learnt of the defendant‟s offending activities. It submits that this Court has jurisdiction to try the present suit because the plaintiff has its branch office in Delh .....

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its Written Statement taking the preliminary objection that this suit ought to be dismissed as the plaintiff has failed to establish that the cause of action had arisen within the territorial jurisdiction of this Court. In furtherance of this, the defendant submits that the alleged Sale Invoice of Batra Medical Hall, Delhi was forged and manipulated by the plaintiff and that the defendant has no relation or nexus with the said Batra Medical Hall, Delhi. Further, the defendant also submits that i .....

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f; that the mark/label of NEHACIL and NYCIL are not deceptively similar. The defendant has also avers that the plaintiff is not the owner of the trade mark nos. 147987 and 774599. Further, the defendant specifically denies the assignment of the said trademarks vide a Deed of Assignment dated February 1, 2005. 12. The defendant submits that it has adopted and used the said trademark openly, extensively and continuously in the market since March 1, 1998. And it is the registered proprietors of the .....

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the controversy between the parties is subject matter of another suit filed by the defendant before the City Civil Court, Ahmedabad, which is pending adjudication. 13. I have heard the ld. Counsels for both the parties and perused through the documents placed on record. It would be suitable to first consider the application filed by the defendant for rejection of plaint under Order VII Rule 11 before proceeding with considering the application of the plaintiff under Order XXXIX Rules 1 and 2 fo .....

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laintiff has submitted that the cause of action arose when they learnt that the defendant was selling its products under the name NEHACIL within the territorial limits of Delhi. In furtherance of this contention, the plaintiff has also claimed that this Court has the jurisdiction to try the present suit. The relevant parts of the plaint reads as follows: 20. The cause of action for the present suit accrued to the Plaintiff for the first time in July 2008 when it learnt of the Defendant‟s o .....

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d selling the infringing goods in Delhi within the territorial jurisdiction of this Hon‟ble Court. Further the Defendant has filed an application for registration of the trademark NEHACIL LAVENDER, which further proves that the Defendant has the intention of carrying on business under the impugned mark all over the country including Delhi. The plaintiff has produced on record a bill provided by one Batra Medical Hall which allegedly sold the products of the defendant under the trademark NE .....

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) 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 or any oth .....

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The instant suit being of passing off, the remedy against passing off is found under common law. Keeping this aspect in mind, in order to address the question regarding the jurisdiction of the Court in a suit for passing off, reference ought to be made to Section 20 of the Code. Section 20 of the Code confers jurisdiction on those courts within whose territorial limits the defendant resides or carries on business or personally works for gain or where the cause of action has wholly or partly aris .....

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ate the claim of the plaintiff that the cause of action arose in Delhi. In the case of M/S Lakhan Pal Shyam Kumar vs M/S Ram Prasad Gupta, CS(OS) 2208/2006, the Ld. Single Judge of this Court, while dealing with the similar issue of rejection of plaint under Order VII Rule 11 for lack of cause of action and jurisdiction held that: 11. The cause of action as is trite is a bundle of facts which are necessary to be proved in a given case and if the cause of action arises within the jurisdiction of .....

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