9911796707
TMI Blog2017 (1) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... since the plaintiff has made a bald statement that it apprehends that defendant would launch its product in Delhi, cannot be accepted. - CS(OS) 2267/2013 & IA Nos. 18638/2013, 24280/2015, - - - Dated:- 6-1-2017 - MR VIBHU BAKHRU J. For the Plaintiff: Mr Rajiv Nayar, Senior Advocate with Mr Shrawan Chopra, Mr Sanjay S. Chhabra , Mr Saurabh Seth and Mr Kanak Bose, Advocates. For the Defendants: Mr Hemant Singh, Advocate with Ms Mamta Jha, Mr Manish K. Mishra and Mr Waseem Shuaib Ahmed, Advocates for D-1. JUDGMENT VIBHU BAKHRU, J IA No. 19059/2015 (U/O VII Rule 10 CPC read with Section 151 CPC) 1. This is an application filed on behalf of defendant no.1 under Order VII Rule 10 of the Code of Civil Procedure,1908, inter alia, praying that the plaint be returned. 2. The plaintiff is a company incorporated under the Companies Act, 1956 and is, inter alia, engaged in the business of manufacturing and marketing alcoholic beverages, including Indian Made Foreign Liquor (hereafter IMFL ). The plaintiff has averred in the plaint that it sells alcoholic beverages under various distinctive trademarks and labels including Officer s Choice . 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the plaintiff was also carrying on its business within the jurisdiction of this Court in a variety of ways including by selling its products under the relevant trademarks. He submitted that the plaintiff also has a zonal office in Andhra Pradesh and since the cause of action had arisen in the State of Andhra Pradesh where the plaintiff also carries on its business, the Courts at Andhra Pradesh and not this Court would have the jurisdiction to try the present suit. 8. He referred to the decision of the Supreme Court in Indian Performing Rights Society Limited v. Sanjay Dalia and Another: (2015) 10 SCC 161 and the decision of a Division Bench of this Court in Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar Chaubey Ors.: 2016 (65) PTC 469 (Del) (DB) in support of his contention that the Courts, where the cause of action arises, would have the jurisdiction to try the suit if the plaintiff also had a subordinate/branch office at the said place; and, the Courts having jurisdiction over the place where the plaintiff s principal office was situated would not have the jurisdiction to try the suit if the cause of action had arisen in another place and the plaintiff a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material produced by the plaintiff without looking into the written statement filed by the defendant. In Exphar SA and Another (supra), the Supreme Court had observed that: when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct. 12. In view of the above, at this stage, the question whether this Court has the jurisdiction to try the present suit would have to be considered on demurrer; without looking into the defence pleaded by the defendants. 13. As stated earlier, Mr Nayar did not contest the position that this Court would not have jurisdiction to entertain the present suit only on the basis that the plaintiff s office was situated in Delhi or that the plaintiff carried on its business in Delhi. He fairly conceded that in view of the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. The plaintiff has averred that the impugned mark Smart Choice is deceptively and confusingly similar to plaintiff s registered trademark Officer s Choice and further the Label Smart Choice is also a substantial reproduction of the plaintiff s Officer s Choice label. 19. In paragraph 20 of the plaint, the plaintiff has stated that it became aware of the defendant s infringing activities in September, 2013 when it came across defendant s whisky being sold in the State of Andhra Pradesh. The plaintiff had further claimed that use by defendants of the label and trade dress and use of the prefix Smart to the suffix Choice is indicative of the malafide intent of the defendants. The averments made in paragraph 22 of the plaint are to the effect that defendants had substantially reproduced the very nuance of the plaintiff s label and had slavishly reproduced plaintiff s original, unique and distinctive artistic work for the inferior products. 20. A plain reading of the averments made in paragraph nos. 20 to 25 indicate that the plaintiff is aggrieved by the use - and not the apprehended use - of the impugned mark (Smart Choice) and label by the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intent and malafide of the Defendants. 22. The Defendants have substantially reproduced the very nuance of the Plaintiff s label and have no reasons whatsoever to adopt the same. The Plaintiff is the prior user, adopter and registered proprietor of the said label that was specifically commissioned by it for its own whisky products. The Defendants have expended no time, money or effort to design their own label and have chosen to slavishly reproduce the Plaintiff s original, unique and distinct artistic work for their inferior products. Further, use of a deceptively similar trademark amounts to confusing the consuming public into believing that the Defendants' goods originate from the Plaintiff s repertoire or are in some way associated with or a variant of the Plaintiff s well-known Officer's Choice products. This is a clear case of initial interest confusion as the relevant public would take a second look at the Defendants' infringing product solely on account of its deceptive similarity to the Plaintiff s label and trademark. This reflects deceit and malafide on part of the Defendants. 23. The dishonesty on part of the Defendant is further evident from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for their unauthorized use and adoption of the impugned label and mark for identical products. The intended illegal trade activities of the Defendants are likely to cause harm and injury to the business, goodwill and reputation of the Plaintiff. (emphasis supplied) 21. A plain reading of the aforesaid plaint clearly indicates that the principal grievance articulated by the plaintiff in its plaint which has occasioned the filing of the present suit, is use of a trademark and label which is claimed to be a deceptively similar trademark and label of the plaintiff. There is no averment in the entire plaint from paragraphs nos. 1 to 25 which would indicate that the plaintiff apprehended the use of the trade mark in question in future; on the contrary the averments articulate the plaintiff s grievance regarding the use of the trademark by the defendant. The reading of the plaint does not indicate that it is occasioned by any apprehension of a future launch of the products by defendants. This is amply clear from paragraph no. 26 of the plaint which describes the cause of action for filing the plaint. The same is set out below:- CAUSE OF ACTION 26. The caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concept of quia timet in equity as under: Preventive relief; quia timet. A class of cases whose jurisdiction depends chiefly or altogether on the necessity for relief obtainable only in equity, is that of bills quia timet, whose objective it is to prevent anticipated mischiefs which could not after their occurrence be adequately redressed. Bills quia timet lie where a person has reasonable fears of being subjected to future inconvenience by reason of the neglect, inadvertence, or culpability of another. They are writs of prevention to accomplish the ends of precautionary justice, and they are designed to prevent wrongs rather than to redress them when done. While equity will not interfere for the purpose of declaring rights to prevent a possible controversy which has not yet arisen, or where no actual danger to the plaintiff s rights is shown, it will interfere to prevent a multiplicity of suits, or to protect the subject matter of a controversy where there is actual danger that it may be so dealt with as to prejudice the plaintiff s rights. 27. In Kuldip Singh v. Subhash Chander Jain Ors.: (2000) 4 SCC 50 , the Supreme Court had explained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Thus, the pleadings clearly indicated that the plaintiff therein had filed the suit apprehending an injury and its cause of action included an apprehended injury by manufacture and sale of MPI s proposed Glatiramer Acetate. The substantial cause of action appears to have been based on acts that were imminent and which were pleaded with sufficient particulars. This is plainly clear from the reading of the judgement of the Single Judge (See: Teva Pharmaceutical Industries Limited v. NATCO Pharma Limited: 212 (2014) DLT 312). It is, in this context, the Division Bench had noted that the jurisdiction of this Court would not be ousted. It is relevant to note that the decision of the Single Bench in that case was based on the defendant s statement that they would not do any such act as apprehended, in Delhi. The Division Bench had held that the statement of defendant could not be considered at that stage and had proceeded on the basis that question as to jurisdiction would have to be ascertained on the basis of the averments made in the plaint. In the present case, the plaint read as a whole does not disclose it to be predicated on an apprehended infringement in future. 31. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
