TMI Blog1997 (5) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... r duly registered under the Indian Copyright Act by using these in the art work involved in defendant's label and wrappers titled Maingi's Todha Sweet, from infringing the trade name Dodha House of the plaintiff by using the word Todha as part of defendant trade name and also from passing off their goods as goods of the plaintiff under the trade mark Todha. 3. The case set up by the plaintiff in the plaint is as follows. The plaintiff is a firm which was registered under the Indian Partnership Act and Subhash Chandra Vig is one of its partners. The plaintiff is engaged in the business of manufacturing confectionary sweet-meats under the trade mark Dodha and has been carrying on his business under the trade name Dodha House, which trade mark was adopted in the Year 1912 and is being used continuously since then. The plaintiff's registered office is at Kot Ka Pura in District Faridkot and the branches are in Ludhiana, Delhi and Ghaziabad. The plaintiffs trade name Dodha House was duly registered on 15-1-1972 under the Trade and Merchandise Marks Act, 1958. The plaintiff is also owner of Royal Dodha Sweets and art work/label and wrapper of the same were registered under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion had accrued at Ghaziabad and the Court at Ghaziabad had no jurisdiction to try the suit. The defendants also filed objection to the injunction application filed by the plaintiff on the same grounds which are set up in the written statement, 5. The parties filed affidavits in support of their respective cases and also some documents. The learned Addl. District Judge accepted the version of the plaintiff and passed an injunction order in his favour on 17-1-1992 in the terms mentioned earlier. 6. Sri Yatindra Singh, learned counsel for the defendant-appellant has urged that the wrappers of the plaintiff and defendant No. 1 in which sweet is sold are entirely different and as such there is neither any infringement of the provisions of the Trade and Merchandise Marks Act or of the Copyright Act nor there is any chance of deception upon the customers and therefore the trial court erred in passing the impugned injunction order. The learned counsel has referred to the wrappers of the product of the plaintiff and defendant on which the following is written : PLAINTIFF'S PRODUCT ROYAL Estd. 1912 DHODHA Sweet Manufactured by Dodha House (Regd.) Gold Medalist. Regd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the two wrappers is entirely different. In the plaintiff's wrapper it is of blue colour while in the defendants' wrapper it is of red colour. It may also be noticed that the plaintiffs' product is Dodha and the defendant product is Todha. Phonetically they may sound some what similar but there is difference in their spelling. In the defendants' wrapper these words have been written in very bold print in black colour which are more than one inch long. Learned counsel for the plaintiff has placed reliance on K.R. Chinna Krishna Chettiar v. Sri Ambal Co. [1970]1SCR290 wherein it has been held that the resemblance between the two marks must be considered with reference to the ear as well as the eye and ocular comparison is not always the decisive test. Even if there is no visual resemblance between the two marks, that does not matter when there is a close affinity of sound between the words which are distinctive features of the two marks. He has also placed reliance upon Ruston and Hornby Ltd. v. Zamindara Engineering Co. [1970]2SCR222 and has urged that the customers are likely to be misled. In view of the features which distinguish wrappers of the plaintiff and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal, Bus Stand, Nawan Shaltar and the other is Special Dodha manufactured by Har Har Mahadev Misthan Bhandar, Model Town, Yamuna Nagar 135 001. This documentary evidence prima facie supports the defendant's contention that Dodha is a name of a variety of sweet and it is not a special product which is manufactured by the plaintiff alone. 10. Sri Yatindra Singh has next submitted that according to the para 3 of the plaint, registered head office of the plaintiff is at Kot Ka Pura in District Faridkot but the plaintiff also carries on business at Ghaziabad and Delhi. As per para 10 of the plaint, the defendant No. 1 carries on his business in Kot Ka pura and not at Ghaziabad. It is thus urged that the Court at Ghaziabad has no jurisdiction to try the suit. Section 105 of the Trade and Merchandise Marks Act lays down that a suit for infringement or relief to any right in registered trade mark or for passing off the same shall be instituted in District Court having jurisdiction to try the suit and in view of Section 20 C.P.C. such a suit can be filed where the defendant resides or carries on business or personally works for gain, Therefore on the allegations made in the plaint t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Samrat Pharmaceutical AIR1984Delhi265 and 1992 patent and Trade Marks Cases 94. Reliance is also placed on Tata Oil Mills Co. Ltd. v. Reward Soap works AIR1983Delhi286 . 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 Ghaziabad in view of Section 105 of the Trade and Merchandise Marks Act. The mere fact that the court may have jurisdiction to entertain the suit with respect to a cause of action under the Copyright Act under Section 62 of the Act can be of no avail. I am, therefore, of the opinion that the court at Ghaziabad has no territorial jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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