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TMI Blog2004 (2) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... ine for the treatment of malaria. The medicine is sold under the trademark 'Maloxine' in packaging having a distinctive get up, lay-out and design. The appellant No. 1 has claimed to be the owner of the copyright in the trademark 'Maloxine'. The plaint also contains a description of the distinctive carton in which the medicine is sold. According to the appellants, the appellant No. 1 had entered into a contract with appellant No. 2 by which the appellant No. 2 was authorised to manufacture tablets under the appellants' trade mark for sale in the rest of the world apart from Nigeria. As far as Nigeria is concerned, the appellant No. 1 had entered into a contract with M/s Shreechem Laboratories for manufacturing 'Maloxine'. These agreements h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demark 'Maloxine' or adopting the distinctive get up of the 'Maloxine' carton; restraining the infringement of the copyright of the first appellant in the artistic work comprised in the 'Maloxine' carton; for delivery up of the infringing goods and for accounts on account of the use of the impugned mark. The jurisdiction of the Delhi High Court was sought to be attracted on the bases: (a) the copyright of the plaintiffs (appellants) in the 'Maloxine' carton was being infringed by the respondents; (b) the plaintiffs (appellants) carry on business in Delhi and one of them has a registered office in New Delhi. It was also stated that the defendants carry on business for profit in New Delhi within the jurisdiction of the High Court. On the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture, sale and stock of the goods in their factory in court every quarter, and (b) that in case the plaintiff succeeds, they shall pay without demur 10% of the sale proceeds by way of estimated loss of profit to the plaintiff, as damages within three months from the date of decision by this court." Both the respondents and the appellants preferred appeals from this decision. The respondents did not question the territorial jurisdiction of the High Court in its Memorandum of Appeal. Nevertheless, the Division Bench not only allowed the respondents' appeal but also directed the appellants' plaint to be returned to the appellants for presentation before the appropriate Court solely on the ground that the Delhi High Court had no territorial ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urprisingly the Division Bench said: "Admittedly the goods are being traded outside India and not being traded in India and as such there is no question of infringement of trademark within the territorial limits of any Court in India what to of Delhi". Apart from the ex-facie contradiction of this statement in the judgment itself, the Division Bench erred in going beyond the statements contained in the plaint. The Division Bench has also erred in its construction of Section 62 of the Copyright Act, 1957. Section 62 reads: "62. Jurisdiction of court over matters arising under this Chapter. (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituting the proceedings ordinarily resides, carries on business etc." It is, therefore, clear that the object and reason for the introduction of sub-section (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doing so. Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding, or where there are more than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a Court over and above the 'normal' grounds as laid down in Section 20 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of that Court. The respondents' reliance on the decision of this Court in Oil and Natural Gas Commission V. Utpal Kumar Basu and Ors. 1994 (1) Supp SCR 252 and Union of India and Others V. Advani Exports Ltd. and Another 2002 (1) SCC 567 is inapposite. Those decisions held that the service of a mere notice may not be sufficient to found jurisdiction unless such notice formed an integral part of the cause of action. But a 'cease and desist' notice in a copyright action cannot, particularly in view of Section 60 of the Act, be termed to be a 'mere' notice. Such a threat may give rise to the right to institute a suit to counter such threat and to ask for relief on the ground that the alleged infringement to which the threat related w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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