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According to the defendant, there is no cause of action for filing the suit. The suit is barred by the law of limitation. There has been neither any violation of trademark, nor is there any passing off. Since the plaintiff had only certification trademark, no right or cause of action could arise for the plaintiff under such certification trademark against the defendant's using the "DARJEELING LOUNGE". The plaintiff has also no right to sue the defendant for the alleged cause of action under Geographical Indication Act, 1999 either. According to the defendant, suit is not maintainable in view of Section 26 of the Geographical Indication Act, 1999 and particularly that the word 'DARJEELING' is also being used as a corporate name by many others against whom no action has been taken by the plaintiff.

In order to decide the question involved in this suit let me answer the issues framed by this Court. For the sake of brevity, issue nos.1, 18 and 21 are taken up together.

Issue Nos.1, 18 and 21: At the beginning, it is necessary to point out that the plaintiff has not obtained a registered trademark under Sections 18 and 23 of the Trademarks Act, 1999. On the contrary, the plaintiff has obtained a certification trademark registration under Chapter VIII of the Trade and Merchandise Marks Act, 1958 as admitted in the plaint. Certification trademark has been separately defined under Section 2(1)(c) of the Trademarks Act, 1958 for the proper appreciation and application of the law in the facts of the present case, it is necessary to take note of the provisions of Sections 18 and 23 of the Trademarks Act, 1999 as also Section 2(1)

(c) of the Trade and Merchandise Marks Act, 1958. The certification trademark application was filed by the plaintiff in form no.TM4

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prescribed under the Trade and Merchandise Marks Rule, 1959 and rules issued thereafter under the Trade and Merchandise Marks Act, 1958 (hereinafter to be referred to as the "T.M.M. Act"). Certification trademark issued under the said T.M.M. Act confined to goods and was not extended to services.

The T.M.M. Act, 1958 was repealed by the Trademarks Act, 1999. In this regard, Section 159(2) of the Trademarks Act, 1999 is required to be taken note of. The said provision provides that certificate issued under the T.M.M. Act, 1958 will continue to be in force and have the effect as if it was issued under the corresponding provisions of Trademarks Act, 1999. The repealing Section does not say that certificate as issued under T.M.M. Act, 1958 would stand extended by the provisions of Trademarks Act, 1999. Therefore, the provisions of law clearly enunciate that certification trademark is confined to goods, not to any services. The goods here relates to 'Tea'. It is profitable to reproduce Section 159 of the Trademarks Act, 1999 which is set out below:-

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not show that the certification trademark extends to any service. It is apparent that the said certification trademark is applicable only in respect of goods and not the services. Pages 83 and 84 of the plaint are copies of the entry in the register of trademark with a device of a woman holding two leaves and a bird. It does not appear that the defendant has used any mark or logo similar to the logo of the plaintiff like tea. The second certified copy disclosed in the plaint at page 84 also corroborates that the certification trademark registration is confined to goods which is described as 'Tea'. Thus, it appears that under the certification trademark, no right with respect to any service has been conferred on the plaintiff nor under the certification of trademark any right in respect of the word 'Darjeeling' has been conferred on the plaintiff. The only right has been granted to the plaintiff is to certify tea as 'DARJEELING TEA'. From the records it does not reveal that the defendant has been using the certifications trademark in respect of any goods. In paragraph 10 of the plaint the plaintiff has stated that on or about October 9, 1986, the plaintiff duly applied to be registered as the proprietor of the 'DARJEELING' logo, while on December 10, 1998, the plaintiff duly applied to be registered as the proprietor of the name 'DARJEELING', both as certification trademarks under Chapter VIII of the T.M.M. Act, 1958 which was then in force and the same were duly registered under the T.M.M. Act. It has been admitted in paragraph 10 that by virtue of these registration the plaintiff has the authority to certify that any tea marked by the said name 'DARJEELING' or logo, is guaranteed to be