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2. 14.10.2019 Deed of Assignment of Trade Marks (Original)”

4. The Commercial Court vide order dated 06.02.2024 allowed the Section 8 application filed by the respondents herein holding as under:-

“15. Right in rem or Right in personam:- Applying the said principle of law, this court has to consider the facts of the case on hand. The petitioner has referred Ex.P1 and Ex.P2 Deed of Assignment of Trade Marks dated 14.10.2019 and dated 20.09.2017 respectively, which contain Arbitration Clauses. The petitioner claims right through the said Assignment deeds. The respondents contended in the counter that they signed in a blank stamp paper, which was fabricated as Assignment deeds and in Ex. R8 Legal Notice, they claimed that the petitioner fraudulently included his name in the Assignment deeds and obtained signature of the 1st respondent in the Assignment deeds. Further, the respondents stated in the plaint cause of action that the signature of the 1st respondent was forged by the petitioner. The respondents 1 and 2 filed the suit for permanent injunction in respect of trade mark and not suit for declaration of any trade mark. The said suit is filed for the reliefs against infringement and passing off, which by their very nature would fall within the jurisdiction of the arbitrator. The right that is asserted by the petitioner is not a right that emanates from the Trademark Act, but a right that emanates from Ex.P1 and Ex.P2 Assignment deeds. The assignment of a trademark is by a contract and not by a statutory act. It does not involve any exercise of sovereign functions of the State. It cannot be said that the disputes are not arbitrable. Further, no relief has been prayed for declaration to set aside the said Assignment deeds.

20. On perusal of Clause 15 of “Deed of Assignment of Trade Marks”, dated 20.09.2017 and 14.10.2019, it is seen that in the event of any dispute between the parties, parties agreed to get such issues resolved. through Arbitration and in the event of not finding a resolution through Arbitration, the Court having jurisdiction in Coimbatore to the exclusion of all other Courts. The Clause 15 of “Deed of Assignment of Trade Marks”, dated 14.10.2019, contains Arbitration Clause, which reads as follows:-

 (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

22. The suit has been filed by the Petitioners / Plaintiffs by suppressing the Arbitration Clause. The right of the Respondents emanates out of the agreement between the parties. When there is a valid contract between the parties providing for Arbitration, all claims including enforceability can only be adjudicated before an Arbitrator. Though the Petitioners disputed the execution of the agreement, the existence of the agreement is not disputed. An Arbitration Clause which forms a part of the Agreement shall be treated as an agreement independent of the other terms of the Contract. Further, the Arbitral Tribunal has power to decide on any objections with respect to the existence of validity of the agreement when there is an Arbitration Clause. The petitioners and Respondents having signed in the ‘Assignment Deed of Trademark’, which contains the Clause regarding settlement of dispute through arbitration, the Court below is right in referring the matter to the Arbitral Tribunal.