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2001 (7) TMI 1314

..... abu, The plaintiff which has its place of business at Bangalore had sought leave to institute a suit in this Court claiming an injunction against passing off by the defendant, which is a company having its place of business at Pondicherry. It was alleged that a part of cause of action for the suit arose in Chennai, as the plaintiff's application for registering it as the owner of a trade mark Royal Gold Cup whisky was filed before the Registrar of Trade Marks at Madras on 18.03.1998 Leave was granted on 04.01.2001 Subsequently the defendant, after entering appearance applied for revoking the leave. That application, having been dismissed, the defendant in the suit is in appeal before us. 2. It was submitted for the plaintiff that having .....

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..... . 5. The test formulated by Fry, L.J, if applied here, will demonstrate how fallacious the argument advanced by the plaintiff is. The action here is one for passing off and not one for infringement of trade mark which has been registered. The action of passing off can be maintained even without applying for registration of a trade mark and can be maintained even in spite of the registration of trade mark by defendant. The registration of a trade mark, by itself, will not preclude the action of passing off if the plaintiff is able to demonstrate necessary ingredients for establishing his rights. The action or inaction on the part of the plaintiff in relation to the registration of the mark which he claims to be his, is wholly irrelevant for .....

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..... sfying the test formulated by Fry, L.J, for ascertaining the cause of action, namely everything which, if not proved, entitles the defendant to an immediate right to judgment. 9. The cause of action in a suit for passing off, on the other hand and as already observed, has nothing at all to do with the location of the Registrar's Office or the factum of applying or not applying for registration. It is wholly unnecessary for the plaintiff to prove that he had applied for registration. The fact that the plaintiff had not applied for registration will not improve the case of the defendant either. Filing of an application for registration of trade mark, therefore, does not constitute a part of cause of action where the suit is one for passin .....

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..... add a prayer with regard to infringement and that the plaintiff would be ultimately in a position to establish infringement. The cause of action is something which has occurred and which gives a right to take action. The cause must precede the action and not follow it. The events contemplated by the plaintiff as being capable of occurring at a point of time in the future, merely on account of those possibilities, will not constitute a cause of action for relief, for securing which, those events are not materially relevant. 12. Counsel also submitted that Pondicherry is at a short distance from Madras and that also is a factor, which should weigh with the Court in granting or refusing to grant the leave. Once a border is drawn it does not m .....

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