TMI Blog1998 (3) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: - 29. The cause of action for the present suit in favor of the plaintiffs and against the defendants arose first of all in the year 1982 when the defendant No.1 applied for the registration of the trade mark MARSHAL and the plaintiffs served a notice on the defendant No.1 dated 23.7.82. The cause of action against arose when the plaintiffs came to know from the Trade Marks Journal No. 823 dated 16.9.83 that defendant No. 2 had applied for the registration of the trade mark (logo) PFMA in respect of the goods of the same type and the plaintiffs filed notice of opposition against the same. The plaintiffs did not think it proper to take any legal action at the court against the defendants in the matter and thought it before to wait till the decision of their opposition applications and hence the cause of action then arose on 30.4.1988 when the said applications of defendant No.2 were refused for registration by the Registrar of Trade Marks Bombay. The cause of action lastly arose in the month of June, 1989 when the plaintiff came to know from trade that the partners of the defendants were going to form a company under the Companies Act with the proposed name of the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff has claimed that Delhi High Court has jurisdiction on three counts. Firstly, in view of Section 62 of the Copyright Act, 1957. Secondly, in view of the fact that the defendants had sought registration of trade mark for sale at Delhi as well and, therefore, the plaintiff is entitled to restrain the threatened sale by defendants at Delhi. Thirdly, it has been claimed that the goods under the impugned mark have been sold at Delhi and the plaintiff rights violated at Delhi. On the other hand, the defendants claim that Delhi Court has no jurisdiction as plaintiff and defendants, have been residing at Rajkot and both the parties have also been ordinarily working for gain at Rajkot and that no sale has been effected by defendant within the territorial jurisdiction of this court. 4. The jurisdiction of a court does not depend upon the defense taken by a defendant and it is the allegations made in the plaint which decide the forum. The court, while considering an application for grant of temporary injunction can, however, go into the question whether, prima facie, it has jurisdiction or not and for the said purpose not only the pleadings but the affidavits, documents and other mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overlapping between the two remedies. Some controversy is no doubt possible if the mere jurisdiction of the Court to entertain an action for infringement of copyright would also give the court the necessary jurisdiction to deal with the corresponding infringement of trade mark, where both constitute part of a composite suit. In view of the undoubted jurisdiction of this Court in relation to the infringement of copyright, court would be justified in granting injunction of both the trade mark and the copyright at this stage of the proceedings, particularly, where there is a specific averment in the plaint, whatever it may be worth, that the plaintiff has been selling the goods, interalia, within the territorial jurisdiction of this court. 6. In the present case a specific averment has been made in Para 30 has reproduced above to the effect that the goods of the parties bearing the impugned trade mark are also sold in the Union Territory of Delhi and also that the defendants have violated the statutory rights of the plaintiff by imitating the label registered under the Copyright Act and jurisdiction of this court is also attracted in view of Section 62(2) of the Copyright Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants have applied for registration of trade mark in Delhi, they can claim an injunction to prevent any sale of the infringing product in Delhi. In this sense, the Court will have jurisdiction whether any sale in Delhi has taken place or not. In any case, as already stated, the decision is of a preliminary nature, once the exact scope of what the defendants intend to do is known, it is open to the Court to return the plaint. In that sense, it is not a final decision and is not open to appeal at the preliminary stage being not a final adjudication. 8. The third count on the basis of which plaintiff claims that Delhi court has jurisdiction, namely, the sale of goods under the impugned mark at Delhi need not be gone into in detail, in view of our conclusion on other two aspects mentioned above. 9. Learned counsel for respondents has placed reliance on a decision of Punjab Haryana High Court in the case of Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd. Simla, Vs. M/s. Mohan Meakin Breweries Limited, Solan, for the proposition that the alleged sale of infringed goods at Delhi to confer jurisdiction to this court has to be a sale on a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rising under the Trade and Merchandise Marks Act has also been joined for which the court has no territorial jurisdiction. 12. Sri Sahini learned counsel for the plaintiff-respondents has submitted that the court at Ghaziabad has jurisdiction to try the suit and in support of this proposition, he has placed reliance on Glaxo Operation P. Ltd. Vs. Samrat Pharmaceuticals, AIR1984Delhi265 and 1992 P TMC 94. Reliance is also placed on Tata Oil Mills Co. Ltd. Vs. Reward Soap Works AIR 1982 Del 286 . I have considered the submissions made by the learned counsel for the parties. The authorities cited by the learned counsel for the plaintiff-respondents do not relate to such cases where the courts had no territorial jurisdiction to entertain the suit in view of Section 105 of Trade and Merchandise Marks Act. In the present case a bare perusal of the plaint would show that the suit is based upon alleged infringement of registered trade mark or relating to any right in a registered trade mark or for passing off by the defendant of any trade mark; which is identical with or deceptively similar to the plaintiff's trade mark. Such a suit cannot be entertained by the court at Gha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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