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13. It has been further asserted by the learned Counsel for the respondent-plaintiffs that the provisions of Sub-section (1) of Section 27 are not attracted in the present set of facts and circumstances of the case instead the suit is fully maintainable. Section 134 stipulates the forum for institution of infringement proceedings, etc., to be the District Court, which brings the trade marks law in line with the provisions contained in the Copyright Act, 1957, as very often a trade mark is also registered as an artistic work under the Copyright Act. Sub-clause (C) of Clause (1) of Section 134 lays down that no suit 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. Section 135 deals with the reliefs which by way of injunction also may be granted by the courts in the suits for infringement or for passing off referred to in Section 134 subject to such terms, if any, as the court thinks fit and may grant also further relief at the option of the plaintiff, either damages or an account of profits, etc., referred to therein. Sub-clause (b)(i) of Clause (3) of Section 135 further provides that notwithstanding anything contained in Sub-section (1), the court shall not grant relief by way of damages other than nominal damages or on account of profits in any case where in a suit for infringement of a trade mark the defendant satisfies the court that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user being by way of permitted use. Reference is made to the provisions of Section 71 under which the applications for registration of certification trade marks shall be moved before the Registrar in the prescribed manner by the person proposed to be registered as the proprietor thereof and Sub-clause (2) of the said Section provides that the provisions of Sections 18, 19 and 22 shall apply in relation to an application under Section 18 subject to the modification that references therein regarding acceptance of an application shall be construed as references to authorization to proceed with an application. Reference of Section 124(5) is also made under which the court is entitled to grant stay in a suit for infringement of a trademark and shall not preclude the court from making any interlocutory order including any order granting an injunction etc. Section 159 deals with repeal and savings clause by which the Trade and Merchandise Marks Act, 1958 has been repealed wherein it has been laid down that the provisions of the Act, 1999 shall apply to any application for registration of a trade mark pending at the commencement of the Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof. This is for safeguarding the existing rights of the respondent-plaintiffs to the continued use of its trade mark.

20. In the present context an issue which also arises to be determined is, "Whether in absence of the specific words ' passing off in the plaint and if the ingredients of 'passing off ' are present the court could proceed to decide the case as that of 'passing off ?"

21. On meaningful reading of the plaint it is found that the pith and substance in the present case is that of seeking action for passing off alongwith infringement and violation of trade mark, name, symbol and get up etc. of the plaintiffs registered under Copyright Act, 1957 jointly claimed. Para 1 refers to a registration number 611389 (corrected) for the artistic work under the Copyright Act, 1957. Admittedly the registration number is under the Copyright Act, 1957, and not under the Act, 1999. There cannot be and there is no infringement of an unregistered Trade Mark under the Trade Mark Act, 1999. However all the three ingredients of passing off, i.e. disclosure of goodwill, demonstration of misrepresentation and likelihood of suffering of irreparable harm and injury in terms of reputation and money are found to be present from bare perusal of the plaint. Though the very specific word 'passing off has not been used but its absence in the plaint would not disentitle the plaint from being so read if the ingredients so discloses. The averments in paras 3 to 19 of the plaint contain that the business is said to be running for pretty long time and the customers as well as traders have identified and recognized the goods bearing the said trade mark carved with a special artistic and distinctive manner having artistic work/design/style/get up and colours of lettering etc., and the plaintiffs being its creator and author are its absolute owners and are entitled to its exclusive right to put it to use. That the adoption and use of the same without their consent with a deceptively similar trade mark by the third person is bound to cause misrepresentation by way of confusion on the minds of the unwary class of customers with a view to trade upon the reputation of the plaintiffs causing heavy financial losses to him. Lastly, plea of balance of convenience has also been raised.

24. The object of the law of passing off as settled is to protect some form of property usually the goodwill of the plaintiff in his business or his goods or his services or in the work, which he produces. Passing off is a form of tort and contains three elements viz. goodwill, misrepresentation and damage called "classical trinity". The goodwill of the business is ordinarily represented by a mark, name, get up or other badge.

25. Though passing off is not defined in the Trade Marks Act, 1999 but is referred to in Section 27(2) which refers to the rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof are unaffected by the provisions of the Act. Section 134(1)(c) refers to jurisdiction of courts to try suits for passing off arising out of the use of any trade mark unregistered. Section 135 specifies the remedies available in respect of passing off arising from the use of a trade mark. In a passing off action the right and title to sue is to be established by evidence of reputation and goodwill of business so acquired by the plaintiff by using of a specific mark, symbol, badge or name. A settled basic underlying principle of such actionable wrong is that 'a man is not to sell his own goods under the pretence that they are the goods of another man' on misrepresentation which constitute an invasion of proprietary rights vested in the plaintiffs whose goods have acquired a reputation in the market and are known by some distinguishing feature.