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TMI Blog2010 (8) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... ks prominently using the mark VO5 . The Plaintiff has placed certificates issued by the Trademarks Registry on the record to establish its proprietorship of the mark. It is contended that the mark has acquired notoriety and the will known mark world over in relation to the products sold by the Plaintiff and its affiliates. The Plaintiff sues the Defendant for permanent injunction and damages contending, inter alia, that the latter applied for registration of the similar mark and is also unauthorizedly using it. 3. The Defendant filed the written statement resisting the suit and urging that this Court lacks territorial jurisdiction. The pleadings indicate that the Defendant is a Thane based concern and registered in Maharashtra. Admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay, latches, acquiescence on the part of the Plaintiff. The Plaintiffs are based in the USA and time has been spent in their inquiry, handing out instructions as also in preparing and finalizing the legal papers. 27. This Hon'ble Court has territorial jurisdiction to try and entertain the present suit. The Defendant has sought registration of the impugned Trade Mark on an all India basis which includes Delhi the Defendant as such has all the intentions to use the impugned Trade Mark in Delhi if not already used. The Defendant is carrying on, their impugned goods and business activities under the impugned Trade Mark in and from Delhi and as such the impugned acts of passing off and infringement are taking place in Delhi. Besides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a distributor who has appointed a sub distributor /agent in Delhi - who is marketing the Plaintiffs products within the jurisdiction of this Court. It is submitted on this score that the provisions of Section-134 of the Trademarks Act, 1999 are fulfilled. 6. Learned counsel submitted that having framed the issues with regard to the maintainability of the suit on the ground of jurisdiction, the Plaintiff should be provided an opportunity to prove its case during the trial. It is submitted that as to whether goods are sold or whether a branch or agent has been appointed by the Plaintiff in Delhi are factual aspects to be ascertained appropriately during the trial for which an opportunity to lead the evidence has been granted and the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal evidence has been brought on record after the issues were framed on 25.11.2005. It is pointed that the argument about appointment of a distributor is nowhere borne in the pleadings or the documents and this Court should, therefore, confine its order on the basis of the material available on the record. The Defendant lastly relies on the decision reported as Alberto v. R.K. Vijyan and Ors .166 (2010) DLT 391 : 2010 (42) PTC 300 [Del]. The averments in the suit would indicate - in the cause of action paragraph at least - that the Plaintiff felt aggrieved by the Defendant moving an application for registration of trademark. The decision in Dhodha House v. S.K. Maingi, 2006 (9) SCC 41 : 2006 (32) PTC 1 [SC] and Dabur India Ltd. v. K.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere provided with the opportunity to produce further or additional documents. It was not pointed out that such additional documents were ever filed all this while after the issues were framed more than 41/2 years ago. In any event, no such application for producing additional documents to establish the Defendant's presence within the territorial limits of this Court's jurisdiction was ever moved. It is also settled that once issues are struck and the parties are required to lead evidence, there is no question of the Court entertaining the application for adducing further documentary evidence during the trial. 10 Having regard to this, it is apparent that the Court now has to consider the effect of the two documents placed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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