Delhi District Court
Vide This Order vs Rajesh Chopra & Ors on 4 December, 2014
TM No. 110/11 04.12.2014 Present : Counsel for parties. 1.
Vide this order, I shall dispose off application u/o 7 rule 11 and order 7 rule 10 r/w section 151 of CPC for seeking rejection and return of plaint moved by defendants.
2. Plaintiff namely Inter IKEA Systems BV filed a suit u/s. 134 and 135 of the Trade Mark Act 1999 (in short "the Act") for the relief of permanent injunction to restrain from infringement, passing off, damages and / or rendition of accounts etc against defendant namely M/s Wrap Art and Design Pvt. Ltd.
3. It is averred that plaintiff is proprietor of internationally renowned trademark IKEA and since 1943 the plaintiff has been honestly adopted the aforesaid trademark in relation to its said goods and business. The plaintiff trademark is registered in several classes for various services and goods in India as per details mentioned in para no. 8 of plaint. The plaintiff trademark / trade name is well known trademark within the meaning of section 2 (1) (zg) of the Trademarks Act 1999. With the advent of ecommerce the internet and trade thereunder, in year 1996 the plaintiff adopted the said trademark as an essential and material part of its domain name viz. www.ikea.com. The M/s IKEA Trading (India)Pvt Ltd is an Indian subsidiary / affiliate of plaintiff in India at DLF Infinity Tower, Cyber City, Gurgaon, Haryana and also at Mahipalpur, Delhi. Its subsidiary has office at Vasant Vihar, New Delhi as well as per lease agreement for Vasant Vihar office.
4. On the other hand, it is argued by defendant that invoices produced do not show that plaintiff carries on business under the said trademark / tradename within the jurisdiction of this Court.
5. As per the case set up by plaintiff, this court has territorial jurisdiction to try and entertain the present suit as plaintiff and defendants are carrying on business within jurisdiction of this court and defendant's are committing the acts of infringement and passing off within the jurisdiction of this court. The plaintiff has invoked section 134 of the trademarks Act 1999 and Section 20 of CPC, for carving out the jurisdiction of this court. Here it would be relevant to reproduce para no. 39 of plaint which contain averments contending territorial jurisdiction.
Para 39 : "the plaintiff obtained registrations of their trademark IKEA from the office of Registrar of Trademarks, Delhi. The plaintiff has tremendous goodwill and reputation in its said trademark in Delhi which being tarnished or likely to be so tarnished in Delhi by the defendant's impugned activities. The plaintiff's said proprietory rights are being prejudicially affected or likely to be so affected in Delhi due to the defendant's impugned activities besides in other areas. The plaintiff is also promoting/displaying/advertising its said product under the said trademark/trade name through its said domain name/website, which is interactive in nature and accessible in Delhi.
The plaintiff is otherwise working for gain and carrying on business under his said trademark/trade name in relation to its said goods and business in Delhi besides other parts of the country including through its Indian subsidiary and important aspects of its business have been conducted in Delhi including from the registered office : at C16, C Block Market, Paschimi Marg, Vasant Vihar, New Delhi110057. The plaintiff's goods under his trade marks / trade name / domain name are commercially and in the course of trade available in Delhi as also major economic activities pertaining to the use in the course in relation to its and business including purchase, sale export of raw materials and unfinished products etc. are routed through Delhi. The Hon'ble Court further has the jurisdiction to try and adjudicate this suit within the ambit of Section 134 of the Trade Marks Act, 1999. Further the defendant has all the intention of extending their impugned user in Delhi / New Delhi.
6. I have considered the rival contentions of the parties and it would be useful to refer to section 134 of the Trademark Act as under:
134. Suit for infringement, etc., to be instituted before District Court. (1) No suit
(a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.
(2) For the purpose of clauses (a) and (b) of subsection (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.
Explanation.For the purposes of subsection (2), "person" includes the registered proprietor and the registered user.
7. In Tata Iron & Steel Co. Ltd. V. Mahavir Steels & Ors.; 47(1992) DLT 412 it was observed in paras 11&13 as under :
"11. The question regarding jurisdiction can only be gone into after the evidence of the parties is recorded in the case. Even in the Punjab case the suit was not thrown out at the threshold under Order 7 Rule 11 CPC but only after the parties were given an opportunity to lead evidence. The plaint in the present suit categorically states that the defendant no.1 was selling the channels of defendant no.2 under the offending trade mark which is deceptively similar to that of the plaintiff. On these averments the Court must assume jurisdiction and proceed with the suit to determine the question relating to the confirmation/vacation of the stay order at this stage."
8. This aspect has been decided by Hon'ble High Court of Delhi in Pfizer Products Inc. Vs Rajesh Chopra & Ors, 2006(32) PTC 301(Delhi) wherein it was observed as under : "12. The other aspect of the matter is that a threat of selling the offending goods in Delhi would FAO (OS) No.81/2002 Page 10 of 26 in itself confer jurisdiction in the courts in Delhi to entertain a suit claiming an injunction in respect thereof. Whether the threat perception is justified or not is another matter which has to be considered and decided upon in the application filed by the plaintiff under Order 39 Rules 1 and 2 or on merits when the suit is taken up for disposal. Insofar as Order 7 Rule 10 is concerned, assuming that whatever is stated in the plaint is correct, one would have to also assume that the threat or the intention of the defendants to sell and offer for sale the offending goods in Delhi is also correct. Therefore, if the threat exists then this court would certainly have jurisdiction to entertain the present suit."
9. In LG Corporation & Anr. Vs Intermarket Electroplasters (P) Ltd. and Anr.; 2006 (32) PTC 429, following observations were made in para 7 : "7. ......The question as to whether the Court has territorial jurisdiction to entertain a suit or not has to be arrived at on the basis of averments made in the plaint, that truth or otherwise thereof being immaterial as it cannot be gone into at this stage....."
10. In present case, it is undisputed fact that at the time of institution of suit, the plaintiff is carrying on business within territory of this Court. The jurisdiction of the Court does not depend upon the defences taken by the defendant and it is the allegations made in the plaint which decide the jurisdiction. Moreover in the growing time, internet is a world wide phenomenon accessible from every corner of the globe.
11. Further it has been decided in number of cases by Higher Courts that at initial stage of suit, only the allegations made in the plaint are to be looked into while determining whether the court has jurisdiction to try the suit and for the purpose of deciding applications in clause (a) and (d) of rule 11 of order 7 of CPC. The submissions in the plaint are germane and the pleas taken by the defendant in written statement will be wholly irrelevant.
15. In view of above discussions the application moved by defendant being devoid of merits stands dismissed.
Relist this case for arguments on pending applications u/o. 39 rule 1 and 2 of CPC, settlement of issues and further proceedings for 12.01.2015.
(Vineeta Goyal) Additional District Judge01, NDD/PHC/New Delhi/ 04.12.2014