Jurisdiction of Court in case of Trade Mark Infringement? Where to File the suit? - Decision by High Court of Delhi

JURISDICTION OF COURT IN CASE OF TRADE MARK INFRINGEMENT? WHERE TO FILE THE SUIT? - DECISION BY HIGH COURT OF DELHI
 
 
 
(The Judgment can be accessed from the following link: http://lobis.nic.in/ddir/dhc/DES/judgement/28-07-2017/DES27072017S20472013.pdf)
 
Suit by Plaintiff for infringement of its trade mark “INDOVAX” and passing off. Subsequently, by way of amendment of the plaint, the Plaintiff deleted its relief for infringement of its trade mark. An application was filed by the Defendant under Order VII Rule 11 of Code of Civil Procedure, 1908 for rejection/ return of plaint on the ground of lack of territorial jurisdiction.
 
The Hon’ble Court while deciding the present application observed as under:
 
The Plaintiff has confined the present suit to the relief of an act of passing off by the Defendants. Under Section 134(1) (c) of the Trade Marks CS(OS) No.2047/2013 Page 10 Act, 1999, the jurisdiction of the civil Court has to be determined under Section 20 of the CPC. Section 20 of the CPC envisages that a suit can be filed against the Defendants where he is residing or carrying on its business or where any part of the cause of action has arisen. In this case, admittedly the Defendants are neither residing nor carrying on its business within the jurisdiction of this Court. The case of the Plaintiff is that the products of the Defendants are available within the jurisdiction of this Court and, therefore, the cause of action has arisen within this Court and this Court has the territorial jurisdiction.
 
 
It is a settled proposition of law that while determining an application Under Order 7 Rule 11 CPC. the Court has to be guided by the averments made in the application accepting it as a gospel truth and cannot rely on extraneous facts mentioned in the written statement (Saleem Bhai and Ors vs. State of Maharashtra and Ors. AIR 2003 SC 759).
 
 
It is also settled proposition of law that the Court has to confine itself to the averments made in the plaint and the documents supporting the averments in the plaint. This Court in Tilak Raj Bhagat vs. Ranjit Kaur 2012 VAD (Delhi) 186 had held that the plaint has to be read as a whole together with the documents filed by the Plaintiff. The Supreme Court in the case T. Arvindandam vs. T.V. Satyapal and another (1977) 4-SCC-467 had held that the Courts are required to give "a meaningful not formal reading of the plaint" and where the Court reaches to the conclusion that the plaint is "manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits." The same principles were reiterated in I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal and Ors, AIR 1998 SC 634, stating that the Courts have a duty to CS(OS) No.2047/2013 Page 12 find out whether a real cause of action has been set out in the plaint or something purely illusory had been stated with a view to get out of Order VII Rule 11 of CPC.
 
 
·       It is an admitted fact that the trademarks of the Plaintiff as well as that of the Defendants are registered trademarks.
 
 
 
As regards the exercise of personal jurisdiction in cases involving Internet activities, the position appears to be that mere 'passive' posting of a website does not give jurisdiction to the court within whose jurisdiction, the complainant company is present. Thus, personal jurisdiction cannot be exercised over non-residents merely because their website is accessible within the jurisdiction of the court. There has to be something more to indicate purposeful direction of activity to the forum state in a substantial way. In Cybersell Inc. case (supra) limited interactivity of the website restricted to received browser's name and expression of interest but not signing up for the services provided was not considered to be sufficient for the exercise of jurisdiction."
 
 
In the plaint, the Plaintiff has nowhere alleged that the Defendant has any authorized distributor, dealer or stockiest in Delhi. The Plaintiff only averred "that the Defendants through their small time agents are even paddling their products in Delhi." Also, in the paragraph where the Plaintiff CS(OS) No.2047/2013 Page 22 has pleaded that this Court has the jurisdiction, it only says that the said "product is available for purchase in Delhi". The Plaintiff pleads that the vaccine of the Defendant "is available for purchase in New Delhi." It does not say that the Defendants are selling their products within the jurisdiction of this Court. The Local Commissioner report clearly shows that the Defendant’s vaccine is not “available” for sale in Delhi but it is “procured” from the authorized dealer at Karnal, Haryana i.e. M/s Dev Enterprises for supply. These facts clearly show that the invoices have been procured by the Plaintiff to give jurisdiction to this Court and on the basis of these invoices, it cannot be held that the Defendants are doing commercial activities within Delhi.
 
 
 
After considering the above, the Hon’ble Court held that where the goods of the Defendants are not available for sale within the jurisdiction of this Court, it cannot be said that the ordinary person is likely to buy the goods of the Defendants believing that they the goods of the Plaintiff. In such cases, it cannot be said that the cause of action has arisen within the jurisdiction of this Court and allowed the application of the Defendant for return of plaint.
 
(The Judgment can be accessed from the following link: http://lobis.nic.in/ddir/dhc/DES/judgement/28-07-2017/DES27072017S20472013.pdf)
 
 
 
Analyzed and Posted by
 
Vijay Pal Dalmia, Advocate
 
vpdalmia@gmail.com
 
+91 9810081079