Reva Khetrapal, J.
1. This application under Order 7 Rule 10 read with Section 21 and Section 151 Code of Civil Procedure is filed by the defendants for return of the plaint to the plaintiff on the ground that this Court has no jurisdiction to entertain and try the suit.
2. The suit filed by the plaintiff is one for the relief of injunction, delivery up and rendition of accounts of profits for infringement of trademark and copyright.
3. The plaintiff is a company duly organized under the laws of Germany and is engaged in the business of manufacture and trade of a wide range of fashion and lifestyle products, which principally include clothing and ready-made garments of all kinds. The plaintiff's trademark 's.Oliver' is duly registered in favor of the plaintiff in India under the Trade Marks Act, 1999 vide Trademark Registration No. 522064 in Class 25 in relation to articles of clothing included in class 25 as of 29th December, 1989. The user claimed is that of 01.09.1975. Along with the plaint, the plaintiff has enclosed true copy of its publication in the Trade Mark Journal No. 1148 Along with Renewal Certificate certifying its renewal for the onward period of ten years from 29th December, 2003. The plaintiff has asserted that the plaintiff has been getting its products manufactured/produced in India under the aforesaid trademark and trade name and has maintained its aforesaid trademark registrations in India. Plaintiff has further asserted that right from its inception, the plaintiff has always intended to extend its goods and business under its various trademarks, including the said trademark and trade name into India, which the plaintiff has since done.
4. The plaintiff alleges that the defendants, who are also engaged in the business of manufacture and trade of clothing, ready-made garments and hosiery goods, have adopted and are using in the course of trade the trademark 'OLIVER' and/or 'OLIVES' in an artistic manner in relation to their goods and business without the leave and license of the plaintiff. The impugned trademark of the defendants is identical with and/or deceptively similar to the 's.Oliver' trademark, trade name and domain name of the plaintiff in each and every aspect. The impugned goods and business of the defendants there under are also of the same/similar/allied/cognate nature to that of the plaintiff. The defendants are thus infringing the plaintiff's aforesaid trademark under Registration No. 522064 in Class 25 as also violating the plaintiff's copyrights. It was on or about March, 2004, the plaintiff became aware of the defendants and their impugned adoption and use of the plaintiff's trademark through the defendants' application for registration of the trademark 'OLIVES' under Application No. 111596 in Class 25, which was advertised in Trade Mark Journal MEGA 5 dated 14th November, 2003 at page 6027-6028. Immediately on becoming aware of the defendants impugned application from the Trade Mark Journal, the plaintiff lodged a notice of opposition in Form TM-5, which is pending under Opposition No. KOL-171121. The plaintiff also served a legal notice dated 1st April, 2004 calling upon the defendants to cease and desist from their impugned activities. The defendants not having ceased their impugned activities, the present suit was instituted in this Court.
5. Paragraph 32 of the plaint, which pertains to the jurisdiction of this Court and which is the anchor-sheet of the contentions of both sides, is as extracted hereinbelow:
32. This Hon'ble Court has the jurisdiction to try and adjudicate the present suit. The defendants impugned activities of infringement and passing off are being carried on within the jurisdiction of this Hon'ble Court. Defendants are commercially manufacturing and dealing in the impugned goods and business and selling them under the impugned Trade Mark and soliciting trade there under within the jurisdiction of this Hon'ble Court and/or have all the intentions to do so if not already done. The defendant have claimed to have been using the impugned Trade Mark on an all India basis and have also sought their impugned registration on an all India basis. The cause of action in whole or in part has arisen within the jurisdiction of this Hon'ble Court.
The plaintiff aforesaid Trade Mark is registered with the Registrar of Trade Marks at New Delhi and as such the citus (sic.situs) of the plaintiffs Trade Mark is at Delhi and within the jurisdiction of this Hon'ble Court.
The plaintiff is carrying on his said goods and business under the said Trade Mark, Trade Name and Domain Name within the jurisdiction of this Hon'ble Court where the plaintiff said goods there under are commercially available for sale and trade. Plaintiff holds excellent goodwill and reputation within the jurisdiction of this Hon'ble Court. Plaintiff's proprietary rights and goodwill are being violated within the jurisdiction of this Hon'ble Court. This Hon'ble Court further has the jurisdiction within the meaning of Section 134 of the Trade Marks Act & Section 62(2) of the Copyright Act.
6. In reply to paragraph 32 of the plaint, the defendants in paragraph 32 of the written statement have averred that this Court has no jurisdiction to entertain and try the suit. The aforesaid paragraph of the written statement reads as under:
32. The contents of para 32 are wrong and are denied. It is denied that this Hon'ble Court has jurisdiction to entertain and try the suit. The plaintiff admittedly is not based in Delhi. The defendant is also not based in Delhi but in Kolkatta. The plaintiff or defendants do not have any offices in Delhi. None of them voluntarily resides or works for gain in Delhi. The fact that the plaintiff was granted the registration of the trade mark by the Registrar of Trade Marks with the Delhi as the jurisdiction would not confer the jurisdiction of this Hon'ble Court (.sic). No cause of action has arisen within the territorial jurisdiction in this Hon'ble Court. Rest of the contents are also wrong and are denied. The plaint is liable to be returned to the plaintiff for presentation in the proper court having jurisdiction to entertain and try the suit.
7. Cause of action, it is trite law, is a bundle of facts which are necessary to be proved in a given case and which, if arises within the jurisdiction of the court concerned, empowers the court to entertain the matter. Determination of territorial jurisdiction of a Civil Court under the Code of Civil Procedure is governed by the provisions of Section 16 to 20 of the said Code. Section 20 of the Code, which is relevant for the present purposes, reads as follows:
20. Other suits to be instituted where defendants reside or cause of action arises.-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
8. The jurisdiction of the Civil Court to determine a dispute under the Copyright Act, 1957 is governed in addition by the provisions of Sub-section (2) of Section 62 of the said Act, which is in the following terms:
(2) For the purpose of Sub-section (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 proceedings, the person instituting the suit or other 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.
9. A bare reading of the above provision shows that the Copyright Act, 1957 creates an additional forum by providing that a suit could be instituted where the plaintiff actually and voluntarily resides or carries on business or personally works for gain. Although the Trade Marks Act, 1958 provided no such additional forum, by subsequent amendment the provisions of Sub-section (2) of Section 134 of the Trade Marks Act, 1999 were brought in pari materia with the provisions of Sub-section (2) of Section 62 of the Copyright Act, 1957. Sub-section (2) of Section 134 of the Trade Mark Act, 1999 is in the following terms:
(2) For the purpose of clauses (a) and (b) of Sub-section (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.
10. Strong reliance is placed by learned Counsel for the defendants on a recent judgment of the Hon'ble Supreme Court in the case of Dhodha House & Patel Field Marshal Industries v. S.K. Maingi & P.M. Diesel Ltd. 2006 (32) PTC 1 to contend that neither the plaintiff nor the defendants actually and voluntarily reside, carry on business or personally work for gain within the territorial jurisdiction of this Court. The further contention of counsel for defendants is that in order to invoke the jurisdiction of this Court in respect of different causes of action, that Court will have the jurisdiction which has jurisdiction over all the causes of action. Counsel for defendants has also strongly relied upon the interpretation of the expressions 'actually and voluntarily resides', 'carries on business' or 'presently works for gain' by the Apex Court in Dhodha House (supra). He contends that there is no manner of doubt that neither the plaintiff nor the defendants actually and voluntarily reside or personally work for gain within the jurisdiction of this Court and that the plaintiff has not filed any evidence whatsoever, even of a prima facie nature, to show that the alleged infringement and/or passing off has taken place within the territorial jurisdiction of this Court or that the defendants are commercially manufacturing and dealing in the impugned goods and business and selling them under the impugned trademark within the jurisdiction of this Court and/or have intentions to do so, if not already done.
11. Learned Counsel for the plaintiff controverter the aforesaid contentions raised by learned Counsel for the defendants. He submitted that the Supreme Court decision in Dhodha House (supra) cannot be applied to the present case as the Supreme Court in the said case was dealing with the provisions of the Trade Marks Act, 1958 whereas the present case is under the new Act viz., the Trade Marks Act, 1999. Learned Counsel for the plaintiff also submitted that mere filing of an application by the defendants in Kolkatta for registration of the trademark, which is being used by the plaintiff, would not grant territorial jurisdiction to that Court to hear the matter. He raised a three-fold contention. Firstly, that it is settled law that jurisdiction vests in the court in which the trademark is registered. Secondly, that both the plaintiff and the defendants are 'carrying on business' in Delhi. Thirdly, he contended that it is also settled law that an injunction can be granted when there is a threat of the goods being sold at a particular place, say Delhi, and that it is not necessary that before an injunction is granted, the goods must have been sold in Delhi. Even if there is an intention to sell and the plaintiff is able to make out a prima facie case of such intention, the Court can grant an injunction restraining the defendants from carrying out their intention to sell the offending goods at a particular place.
12. Adverting to the first limb of the plaintiff's contentions, there is no denial of the fact by the defendant that the trademark of the plaintiff is registered with the Registrar of Trademarks, Delhi which, by itself, is in my view sufficient to vest jurisdiction in this Court. The plaintiff has made a categorical assertion in the plaint that his trademark is registered with the Registrar of Trademarks at New Delhi. The defendants in answer have merely stated that the fact that the plaintiff was granted the registration of the trademark by the Registrar of Trademarks in Delhi would not confer jurisdiction on this Court.
13. As regards the second limb of his contentions, counsel for the plaintiff contended that the fact that plaintiff is carrying on business in Delhi is evidenced both by the registration of the plaintiff's trademark in Delhi as also by the invoices filed by the plaintiff showing that the plaintiff was exporting goods from Delhi. As for the defendants, though there is no doubt that the defendants are not having an office in Delhi, learned Counsel for the plaintiff submits that the plaintiff has clearly alleged that defendants are commercially manufacturing and dealing in the impugned goods and selling them under the infringing trademark within the jurisdiction of this Court, and hence this Court has the jurisdiction to try and adjudicate the present suit; more so, as the said allegation has not been rebutted by the defendants. The defendants in their written statement have themselves claimed to be using the impugned trademark 'on an all India basis' and have also sought registration of the impugned trademark 'on an all India basis'.
14. Learned Counsel for the plaintiff in the above context has relied upon the judgment of the Apex Court in Sushil Kumar v. Rakesh Kumar : AIR2004SC230 to contend that where there is no specific denial of the submissions of the plaintiff by the defendants in their written statement, the said facts must be taken to be admitted. Specific reference was made to paragraph 74 at Page 243 of the Report, which reads as follows:
74. In Badat and Co. (supra) this Court upon referring to Order VIII, Rules 3, 4 and 5 of the Code of Civil Procedure, observed:These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary....
15. There is no denying the fact that the plaintiff has specifically stated in paragraph 32 of the plaint that the defendants are dealing in the impugned goods and selling them under the impugned trademark within the jurisdiction of this Court and/or have all the intentions to do so. It is further stated in paragraph 32 of the plaint that insofar as the defendants are concerned, they have claimed to have been using the impugned goods 'on an all India basis' and have also sought their impugned registration 'on an all India basis' and thus, the cause of action arises within the jurisdiction of this Court. There is no specific denial of these averments in the corresponding paragraph of the written statement. All that is stated by the defendants is that they are not based at Delhi and they are not working for gain at Delhi. There is not a whisper that the defendants have never carried on any business in Delhi or even that the defendants do not intend to carry on any business in Delhi. Then again, the defendants have not specifically denied that in the proceedings before the Registrar of Trademarks at Kolkatta, the defendants have claimed to have been using the impugned trademark on an all India basis and have also sought their impugned registration on an all India basis.
16. From the aforesaid, it clearly emerges that the defendants have not seriously disputed the following facts:
(i) That the defendants are carrying on business under the impugned trademark in Delhi and/or have the intentions to do so.
(ii) That the defendants have claimed in the proceedings at Kolkatta that the defendants have been using the impugned trademark all over India.
(iii) That the defendants have sought registration of trademark OLIVES for user all over India.
(iv) That the plaintiff's trademark is registered in Delhi with the Registrar of Trademarks.
17. In my view, for the present purposes, it is not necessary to advert to the issue as to whether the defendants had been selling their products in Delhi on a commercial scale or not, for the reason that a reading of the plaint as a whole shows that the defendants intend to sell their products at Delhi and in any case the threat looms large. All the more so, as the defendants have sought registration of their trademark on an all India basis, though the same has been sought at Kolkatta.
18. In the above context, reference may be made to a Division Bench Judgment of this Court in Jawahar Engineering Company and Ors. v. Jawahar Engineers Pvt. Ltd. Sri Rampur, Distt. Ahmednagar, Maharashtra 1983 PTC 207 wherein it has been held that a threat that the offending goods could be sold at a particular place would definitely give jurisdiction to the Court in such a place. Significantly, the Division Bench also held that an injunction being prohibitive in nature is intended to prevent something likely to happen and once the plaintiff had learned that the defendants had applied for registration of a trademark in Delhi, they could claim an injunction to prevent any sale of the infringing products in Delhi. The Division Bench, thereforee, held that filing of an application for registration of a trademark in Delhi would give rise to a threat perception that the offending goods would be sold in Delhi and that would be sufficient to give the courts in Delhi jurisdiction to entertain the suit in respect of the same.
19. Defendants in the instant case have not denied that they have applied for registration of their trademark on an all India basis for sale of goods all over India. There is no assertion from their side that they do not intend to sell their goods in Delhi. This, in my view, is sufficient to vest jurisdiction in this Court to entertain the present suit.
20. Reference may be made in the above context to Pfizer Products, Inc. v. Rajesh Chopra and Ors. 2006 (32) PTC 301 wherein a learned Single Judge of this Court has made the following observations:
12. The other aspect of the matter is that a threat of selling the offending goods in Delhi would 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. thereforee, if the threat exists then this Court would certainly have jurisdiction to entertain the present suit.
21. The plaintiff has placed on record invoices to show that goods were being exported from Delhi by the plaintiff and thus, this Court has territorial jurisdiction to entertain and try the present suit. Whether these invoices would ultimately lead this Court to the conclusion that the plaintiff was carrying on business in Delhi is another matter. In so far as Order 7 Rule 10 is concerned, assuming that whatever is stated in the plaint is correct that the plaintiff is selling goods in Delhi, Section 62(2) of the Copyright Act, 1957 and Section 134(2) of the Trade Marks Act, 1999 would be attracted and it must be assumed that the plaintiff is carrying on business in Delhi.
22. For all the aforesaid reasons, I have no hesitation in holding that the plaint is not liable to be returned for want of jurisdiction of this Court.
23. In these circumstances, this application is dismissed.
24. There will be no order as to costs.