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TMI Blog2001 (4) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... lion Pounds. The concerned Cartons have been filed and on a perusal of the offending Carton of PARAMOL EXTRA and PAMACOL , it is quite evident that the Defendants are attempting to not only infringe the Plaintiff's trade mark, but also to pass off its goods as that of the Plaintiff. Confusion in the mind of the consumer is certain to be caused. There is also an obvious infringement of the Plaintiff's Trade mark. In my view a good prima facie case has been made out for the issuance of an ex parte Ad Interim Injunction as prayed for in paragraph 30 of this application. The object of granting the injunction would be defeated if notice of suit is given in the first instance. Accordingly, till the next date of hearing the Defendant, their principal officers, servants, agents and representative are restrained from manufacturing, exporting and selling and offering for sale, advertising, directly or indirectly dealing in pharmaceutical preparations under the trademarks PAMACOL and PARAMOL or any other mark which may be identical with or deceptively similar to the trademark PANADOL and from reproducing, printing or publishing, selling or offering for sale any label or packa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that these Objections at best raise a mixed question of fact and law and therefore it would not be appropriate to adjudicate this vexed controversy as a preliminary objection. He further submitted that in paragraph 16 of the Plaint it has been averred that the manufacture was being carried out by Defendant No. 2 at Andheri, Mumbai. It has also been asserted that the Defendants carry on business in India. A perusal of the Defendants' Invoices would clarify that they had commercial operations in India. Since the prayers were predicated on both the Trade and Merchandise marks Act as also the Copyright Act, if this court could exercise jurisdiction under either of them, the entire relief could be adjudicated upon by this Court. He has relied on Section 55(1) of the Marks Act and also focused on Section 20 of the C.P.C. Mr. Singh also argued that Plaintiff No.2 is a 100% subsidiary of Plaintiff No. 1 and that the Plaintiffs had been granted registration even in this country. 5. Section 55 of the Trade and Merchandise Marks Act, 1958 reads as follows: Use of trade mark for export trade and use when form of trade connection changes:- (1) The application in India of trade mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Others, (1986) RPC 273 and in particular to the following observations contained in that judgment: It is therefore clear that copyright under the English Act is strictly defined in terms of territory, The intangible right which is copyright is merely a right to do certain acts exclusively in the United Kingdom: only acts done in the United Kingdom: only acts done in the United Kingdom constitute infringement either direct or indirect of such right. In the circumstances, it is not surprising that, with on exception, the text books have taken the view that acts done outside the United Kingdom cannot be the subject matter of an action for infringement in the English courts: see Dicey Morris on Conflict of law 10th Ed. page 951: Copinger and Skone James on Copyright 12th Ed. page 1017. I reject Mr. Rubin's submissions. The only wrong under English law that he can rely on for this purpose is breach of the statutory rights conferred by the Copyright Act 1956 and particularly section 1(1). Those rights do not extend to render unlawful anything done outside the United Kingdom. His right under English law is a statutory right, not a tort at common law. No common law rule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge (R.C. Lahoti J. as his Lordship then was) holding that the Court at Delhi had no territorial jurisdiction. I am, however, of the opinion that this decision would not apply to the present case since the action in the earlier case was essentially one of a loss of the personal reputation of Plaintiff No.2. Mr. Ahmedi also relied on another judgment of R.C. Lahoti J in Lok Nath Prasad Gupta vs. Bijay Kumar Gupta, 57 (1995) DLT 502 where the Learned Judge held that a bald assertion, as has been made in para 13 of the Plaint referred to hereinabove, without giving further facts or particulars is not enough to confer this Court with a territorial jurisdiction over the suit. The plaintiff does not allege having any shop, branch or office of his own in Delhi the Plaint also does not allege any instance of the defendant having sold the infringing goods in Delhi. The pleadings in the case at hand are totally distinct. On the basis of the averments in the plaint it is obvious that the cause of action has arisen in India and not outside; at this stage it is not possible to hold otherwise. Furthermore, in that case the implications of the provisions of the Marks Act pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... New Delhi. It ought to make not the slightest difference whether the Copyright is owned by Plaintiff No. 1 since Plaintiff No. 2 is stated to be its wholly owned subsidiary and Plaintiff No. 2 is undoubtedly located in Delhi. The use of the words 'any of he Plaintiffs' in Section 62 of the Act should not be given a restricted application. 11. In M/s. Raja Brothers Cloth Merchants Chandni Chowk, Kucha Rehman, Delhi vs. M/s Chanai Uttam Chand, 2nd (1969) Delhi 931, it was reiterated that for determination the question of jurisdiction of the Court on the basis of the bundle of facts which give rise to the cause of action for the suit, it is not enough for the courts to look only at that paragraph of the plaint - like paragraph 17 of the plaint in the present case - which contains averments of facts giving rise to the cause of action and jurisdiction. The entire plaint must be taken into consideration to ascertain the bundle of facts which give rise to the cause of action and to determine whether any one or more of such facts occurred within the territorial jurisdiction of the Court. It would be recalled that in the present case, it has been specifically averred that manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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