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TMI Blog1998 (7) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... registered trade mark is in Madras an secondly, Eenadu carrying respondent's use of impugned trade mark in the course of its advertisement is circulated in the city of Madras: The order refusing leave to sue is impugned in this appeal. 2. A memo has been filed by the respondent stating that the some of their business has been changed subsequently and there is no infringement as alleged and as such, there is no cause of action. The learned senior counsel Mr. U. N. R. Rao, appearing for the appellant submitted that the similar question often arises for consideration and the learned Judge has observed that it is desirable to settle the issue authoritatively by a decision of the Division Bench of this Court and, hence, insisted for deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade-name and trade mark Ramu for Hosieries. Hence decided to file the suit. 5. It is undisputed that a Caution Notice through the Press and Cease and Desist Notice to the defendant were given. It is also not in dispute that the Trade mark was registered in the Registry at Madras. 6. Advertisement is a step in the process of infringement to solicit customers in the name of the impugned trade mark. In other words, the advertisement is calculated to induce people to believe that such a property is meant for marketing. 7. Infringement of trade mark in Black's Law Dictionary is indicated to mean that it is an unauthorised use or colourable imitation of the mark already appropriated by another on goods of a similar class. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken the view that prima facie publication of an advertisement in Delhi offering for sale of goods was sufficient to confer jurisdiction on the Delhi Courts. In Amar Soap Factory v. Public Gram Udyog Samiti 1985 PTC 85 the Delhi High Court reiterated the same view and held that cause of action in part can be said to have arisen in favour of the plaintiff in Delhi by the publication of the advertisement of the defendant's mark in the Trade Marks Journal and accordingly the Delhi Courts have territorial jurisdiction to entertain and decide the suit. We hold that the trade mark may be infringed by means of an advertisement since the publication of an advertisement in papers, hand bills is calculated to induce people to believe that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual infringement of right sued on, but includes all the material facts on which it is founded. The words cause of action comprise every fact, though for the plaintiff to prove, if traversed, to support his right to the judgment of the court. The words have been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. In the instant case, after all what the appellant complains is that his registered trademark is being infringed, even though the product with the alleged offending mark has not come to the Madras Market. The fact of registration which has necessarily to be alleged and, if traversed, to be proved one's part of the cause of actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition in the General Clauses Act. Admittedly, the trade mark has been put to use and exploited and registered at Madras. Therefore, the cause of action in such suit can be taken to arise where the property is situate or where it was marked or exploited and registration assumes all significance, because in a suit for infringement of a trade mark, the plaintiff has to establish the cause of action by showing that he has a property right in a trade mark and the same has been infringed by the other party. Where the infringement had taken place partly in one jurisdiction by way of advertisement and rest in another jurisdiction by marketing the product, then, the registered owner of the trade mark can maintain the suit either at the plac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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