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2001 (7) TMI 1314

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..... 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 regard to the fact that a trade mark when registered will date back to the date of application, the factum of having filed an application for registration in the registry would suffice to clothe the plaintiff with the right to contend that a part of cause of action in relation to passing off of a trade mark for registering which an application has been filed arose in the city in which Registrar's office is located. As admittedly, the Registrar .....

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..... rk, 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 the purpose of deciding the plaintiff's right to a relief in relation to passing off. 6. In order to establish his right to an injunction in an action for passing off, it is wholly unnecessary for the plaintiff to demonstrate that he had applied for registration of mark under the Trade Marks Act. His failure to demonstrate that he had filed an application for registration will not clothe the defendant with a right to obtain dismissal of the sui .....

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..... e 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 passing off. 10. The argument advanced that registration if granted would date back to the date of application and that the plaintiff would have the right to seek amendment of the plaint to seek relief on the ground of infringement as well, is wholly irrelevant so far as the cause of action for bringing a suit for passing off is concerned. While it may be convenient to the plaintiff to institute a suit in a Court where he may later on be able to bring a .....

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..... ion 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 matter how far away from the border one is - whether it is an inch or a mile makes no difference. If the plaintiff cannot demonstrate that a part of the cause of action arose within the jurisdiction of this Court, the fact that it can be said to arise at a short distance away from it, is of no avail. 13. Counsel placed before us number of judgments to which it is unnecessary to refer as none of them deal with the point which is under consideration h .....

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