R.SUBBIAH, J.,
1. This is an application filed by the plaintiffs to pass an order of interim injunction restraining the defendant from manufacturing, selling, offering and advertising for sale, using the trade mark AGREEGOLD upon the goods P.V.C.Pipes, Rigid P.V.C.Pipes and tubes or in any media and use the same in Invoices, letter heads and visiting cards or any other trade literature or by using any other trade mark which is in any way visually, phonetically or deceptively similar to the applicants' registered trade mark AGRIGOLD under Nos.935848, 935849, 1051706, 1051758, 1051769, 1174585, 1174586, 1174587, 1174588, 1174589, 1174590, 1174592, 1174594, 1174595, 1174599, 1174600, 1174602, 1174603, 1174605, 1174607, 1174608, 1296901, 1176229 or in any manner infringing the applicants' aforesaid registered trade marks by using the mark AGREEGOLD either as prefix or suffix in the course of business pending disposal of the suit.
2. It is the case of the applicants/plaintiffs that the 1st applicant company was incorporated on 09.11.1995 with the objective of promoting corporate cultivation. The 1st applicant and its group of companies have firm faith in agriculture and Agro based industries. The 1st applicant Company was started to promote an evergreen revolution in sectors that are catalysts for economic growth. The 1st applicant and its group of companies provide Plant fertilizers, Bio fertilizers, food, nutrition apart from employment security in India. When the 1st applicant commenced business, it coined the unique expression AGRI GOLD for its use as a corporate name and as a trademark. Since its inception in 1995, the 1st applicant and its group companies have been using the trade mark and the corporate name AGRI GOLD. The 1st applicant had a modest beginning with a few acres of farm lands in Krishna District and has expanded to 3600 acres across andhra Pradesh with integrated farming activities including Horticulture, Herbal Farms, Cash crops, edible crops, energy plantations, hybrid seeds, pisciculture, Emur farms, dairy farms, plant fertilizers, fisheries, power projects and entertainment destinations. The applicants have also filed application for patenting the improvement made on fertilizers field out of cow dung. The 1st applicant is focussing on Hybrid seed production with the objective of releasing high quality yields and disease resistant varieties into the market to be used by the farming community for better yields and earning bigger profits. Apart from agriculture, the 1st applicant has also undertaken fisheries at Kadavakallu, Ananthapur District to supply fish to the domestic market and to conserve the water that goes out of the paddy farms and other crops. The various value added products distributed by the 1st applicant are marketed under the trademark AGRI GOLD. The turnover has been continuously increasing year by year. The 1st applicant group of companies is known in the market as the AGRI GOLD Group of Companies. The name AGRI GOLD is associated solely with the applicants with respect to various agricultural products since 1995 and particularly with fertilizers since 1999. The applicants commenced the use of the trade mark of AGRI GOLD with respect to various goods relating to agriculture and Corporate farming in the year 1995. The applicants have been constantly diversifying and broadening their horizons with a view to acquire a statutory right over the trade mark AGRI GOLD. One of the trade mark applications filed by the applicants for the registration of the trade mark AGRI GOLD has been allowed and granted under No.1174590 dated 13.02.2003 in Class 17 with regard to gutta-percha, Indian rubber, materials for packing, stopping or insulating, asbestos, mica and their products, hose pipes, plastics in the form of sheets, blocks, robs and tubes.
3. While so, the applicants came to know that the respondent company has applied for the deceptively similar mark AGREEGOLD under class 17 which was advertised in the Trade Mark Journal No.1426 dated 16.10.2009 in respect of manufacturing and trading of P.V.C.pipes, rigid P.V.C.pipes and tubes goods that are similar to the applicants' goods. The respondent company are very much aware of the existence of the applicants and their well known registered trade mark AGRI GOLD. The applicants have filed their notice of opposition to the said application for registration of trademark. The respondents by adopting the trademark of the applicants, are attempting to trade upon the goodwill and reputation that has been built up by the applicants. The respondents should not be allowed to infringe the registered trade mark of the applicants and the corporate name AGRIGOLD. The total effect of the respondents' acts of infringement are resulting in dilution of the value, goodwill, reputation and proprietary rights. Hence, the present suit has been filed by the applicants for permanent injunction and for rendition of accounts of profits made by the respondent. Pending suit, the present application has been filed and on 11.02.2010, this Court granted an order of interim injunction.
4. On appearance, the respondent company filed a counter affidavit inter alia stating that this court has no jurisdiction to entertain the suit since no cause of action has arisen within the jurisdiction of this Court. The applicants' registered office is situated at Vijayawada and the respondents are carrying on business at Haryana. Hence, this Court does not have territorial jurisdiction. Both the applicants are claiming to be registered proprietor of various trade marks. It is well settled principle of law that there cannot be two proprietors for a single Trade mark. On this ground also, the suit is liable to be dismissed. Admittedly, the applicants are doing business in agriculture and agri-based industry, whereas the respondents are dealing with P.V.C.pipes and tubes and rigid pipes and tubes. Hence, the nature of business by both parties is totally different. The applicants are claiming user of trade mark AGRI GOLD since 1995, whereas the respondents adopted the trade mark AGREEGOLD since 1994. Hence, the respondents are the first and prior user of trade mark AGREEGOLD. The nature of business, class of customer, etc., of the applicants are totally different, dissimilar and non-identical with the respondents. It is important to point out that the registered trade mark No.1174590 in Class 17 granted in favour of the applicants was filed on 13.02.2003 and in the column of the 'date of user', the applicants declared in the said application as 'proposed to be used'. As the application had been filed on 13.02.2003, the date of user is to be accepted as 13.02.2003 since on the date of filing, the user was claimed as "proposed to be used", whereas the respondents adopted the trade mark AGREEGOLD much earlier and prior to the applicants. Under section 34 of the Trade Marks Act, the applicants are not entitled to interfere with or restrain the use of trade mark if the same trade mark is used prior and earlier by the respondents. Further, in the opposition filed by the applicants to the respondents' application before the Registrar of Trade Marks, the respondents had already filed counter statement and when the issue is pending before the Registrar of Trade Marks, the appellants ought not to have filed the present suit. It is not correct to state that the acts of the respondents are resulting in dilution of the value, goodwill, reputation and proprietary rights of the applicants. The respondents neither committed an act of infringement nor an act of passing off. If the interim injunction is not vacated, the respondents shall be put to irreparable loss, injury and hardship. Under such circumstances, the application is liable to be dismissed.
5. Learned counsel appearing on behalf of the applicants/ plaintiffs submitted that the applicants commenced the use of the trademark of AGRI GOLD in respect of various goods since 1995. The 2nd applicant, viz., Venkatarama Rao Avvas filed application for registration of the trade mark of AGRI GOLD in the year 2000. The 2nd applicant is the founder Director of the AGRIGOLD group of companies. The 1st applicant and other groups of companies are the permitted user of the trade mark AGRIGOLD registered in the name of the 2nd applicant. In this regard, the learned counsel has invited the attention of this Court to the trade mark certificate No.935849 dated 30.06.2000, which contains the trade mark AGRIGOLD, in favour of the 2nd applicant and the certificate of incorporation issued by the Registrar of Companies dated 09.11.1995. Further, one of the trade mark applications filed by the applicants for the registered trade mark AGRIGOLD has been allowed and registration has been granted under No.1174590 in Class 17 in respect of Gutta-percha, Indian rubber, materials for packing, stopping or insulating, etc. As on date, the applicants are having the registered trade mark AGRI GOLD in respect of 64 products in the name of the applicants. Though the respondents have claimed that they are the prior user of the trade mark AGREEGOLD since 1994, absolutely no documentary proof was filed before this Court in support of the same. In this regard, the learned counsel for the applicants, by drawing the attention to the documents filed by the respondents in the typed set, submitted that the said documents carry the trade mark SINGAL and not the AGREEGOLD. Therefore, it is incorrect to state that the respondents have been using the trade mark AGREEGOLD since 1994.
6. With regard to the maintainability of the suit, the learned counsel for the applicants submitted that their trade mark AGRI GOLD was registered only with the Registrar of Trade Marks at Chennai. Therefore, the same would give a cause of action for filing a suit before this Court. The appropriate office of the applicants indicated in the Register of Trade Marks at Chennai. Therefore, the applicants can very well maintain the suit before this Court. In this regard, the learned counsel has also relied on the judgments in the case of RamuHosieries rep.by M.Murugeshan .vs. Ramu Hosieries rep.by Pandela Ramu and another reported in 1999 PTC (19) 183) DB and S.B.S.Jayamand Co., .vs. Gopi Chemical Industries, India reported in 1977 M.L.J.286. The learned counsel further submitted that though this Court had already granted leave in favour of the applicants to file the suit, the respondents have not filed any application to revoke the leave. Therefore, now they cannot raise the question with regard to the jurisdiction.
7. With regard to the other ground raised by the respondents that they are selling the products under the trade mark AGREEGOLD and not the product similar to that of the applicants and as such, they cannot be restrained from using the trade mark AGREEGOLD, the learned counsel for the applicants submitted that under the amended provision to section 29(4) of the Trade Marks Act, if a registered trade mark is infringed by a person in relation to goods or services which are not similar to those for which the trade mark is registered, the same would amount to infringement and as such, the applicants are entitled for injunction. Therefore, the contention of the respondents that there is no connection between the products of the applicants and the respondents has no meaning in the eye of law.
8. Per contra, the learned counsel for the respondents submitted that the applicants' registered office is situated at andhra Pradesh and the respondents are doing business at Haryana. Therefore, absolutely, no cause of action has arisen within the jurisdiction of this Court. Hence, tis Court does not have territorial jurisdiction. Further, the applicants are doing the business relating to agricultural products, whereas the respondents are dealing with P.V.C.pipes and tubes, etc. Therefore, the likelihood of creating confusion in the minds of the customers does not arise in this case. Moreover, the respondents had adopted the mark AGREE GOLD since 1994 and they had also applied for registration of the trade mark at Delhi. The trade mark has also been published in the Trade Marks Journal. However, on account of opposition proceedings initiated by the applicants, the same is pending before the Registrar of Trade Marks. However, the pendency of the proceedings will not affect the right of the respondents to prove their case before this Court that they are the prior user and their product has no connection or link with the products of the applicants. Further, the learned counsel submitted that it is the case of the applicants that the 2nd applicant alone is the proprietor of registered trademark and the 1st applicant and group of companies are permitted to use the said trade mark granted in favour of the 2nd applicant; but absolutely no document was produced that the 2nd applicant has given permission to the 1st applicant to use the trademark. In the absence of any document to show that the 2nd applicant has permitted the 1st applicant to use the trade mark AGRI GOLD, it has to be construed that both are claiming right over the same trade mark and under law, there cannot be two proprietors for a single trade mark. Moreover, the line of business for the applicants and the respondents is totally different when both of them are manufacturing different products. Therefore, on this ground alone, the application filed by the applicants is liable to be dismissed and the applicants cannot claim proprietary right over the trade mark. In support of his contentions, the learned counsel has relied on the decisions reported in Nestle'sProducts Ltd., and others .vs. M/s.Milkmade Corporation and another (AIR 1974 Delhi 40),United Brothers .vs. United Traders (1997 PTC 17), Raymond Limited .vs. Raymond Pharmaceuticals Pvt.Ltd., (2007(34) PTC 334) and BalkrishnaHatcheries .vs. Nandos International Ltd., and another (2007 (35) PTC 295).
9. By way of reply, the learned counsel for the applicants submitted that the present suit has been filed only for restraining the respondents from infringing the trade mark of the applicants and not for passing off. Only if there is a prayer of passing off, then only the question with regard to the similarity of the products of the parties could be considered. Here, the case of the applicants is that since the trade mark is a registered one, the respondents have to be restrained from infringing the same. Therefore, the submission made by the learned counsel for the respondents that the line of business of the parties is different and as such, the applicants are not entitled for injunction, cannot be accepted. The learned counsel further submitted that section 2(1)(r) of the Trademarks Act defines "permitted use", in relation to a registered trade mark. Therefore, though the 2nd applicant is a registered trade mark owner, no infirmity could be found in giving permission to the 1st applicant to use the trade mark AGRI GOLD. In the instant case, only on the permission granted by the 2nd applicant, the 1st applicant is using the trade mark AGRI GOLD. Thus, the learned counsel for the applicants submitted that there is no merit in the contentions of the respondents.
10. This Court has considered the arguments advanced by both sides and perused the materials available on record.
11. In view of the said submissions, the questions that arise for consideration are
(1) Whether there is a cause of action to entertain the suit before this Court ?
(2) whether the respondents are the prior user of the trade mark AGRI GOLD?
(3) Whether the permission granted by the 2nd applicant in favour of the 1st applicant and group of companies to use the trade mark AGRIGOLD is sustainable in law ?
(4) Whether there are two proprietors for a single trade mark, as alleged by the respondents ?
(5) Whether the applicants are entitled for injunction though the products manufactured by the respondents are not identical with that of the applicants ?
12. With regard to the question of jurisdiction, it is the case of the respondents that the applicants are having the registered office at Vijayawada, andhra Pradesh, whereas the respondents are carrying on business at Haryana and they have applied for registration of trade mark at Delhi and the same is now pending. Therefore, this Court has absolutely no jurisdiction to entertain the suit. But it is the reply of the applicants that the applicants' trademark AGRI GOLD had been registered at Chennai. Therefore, this Court has got jurisdiction to try the suit. In support of her contention, the learned counsel for the applicants has relied on the following judgments. In the case of RamuHosieries rep.by M.Murugeshan .vs. Ramu Hosieries rep.by Pandela Ramu and another (1999 PTC (19) 183), the Division Bench of this Court has held as follows:
"Normally, the jurisdiction of the Civil Court in relation to movable property has to be determined with reference to cause of action. Right or interest in a trade mark can only be a movable property having regard to the definition in the General Clauses Act. Admittedly, the trade mark has been put to use and exploited and registered at Madras. Therefore, the cause of action in such suit can be taken to arise where the property is situate or where it was marked or exploited and registration assumes all significance, because in a suit for infringement of a trade mark, the plaintiff has to establish the cause of action by showing that he has a property right in a trade mark and the same has been infringed by the other party. Where the infringement had taken place partly in one jurisdiction by way of advertisement and rest in another jurisdiction by marketing the product, then, the registered owner of the trade mark can maintain the suit either at the place where the cause of action arose partly or wholly which includes the place of registration, advertisement or marketing. This can be by showing that his trade mark has been registered with the Registrar of Trade Marks. Therefore, it cannot be said that no part of the cause of action arose at Madras".
13. In the case of S.B.S.Jayamand Co., .vs. Gopi Chemical Industries, India (1977 MLJ 286), this Court has held as follows:
"In respect of a trade mark registered at the Madras Office, the situs of the property in the mark is at Madras. Even though the plaintiff's mark had been registered under the Trade Marks Act, 1940 at Bombay, by virtue of section 136(2) of the Trade and Merchandise Marks Act of 1958, it should be deemed to have been registered only at Madras".
14. A reading of the said judgments would show that the suit is maintainable where the place of registration of the trade mark has been made. Since the situs of the property in the mark comes within the jurisdiction of this Court, the suit is maintainable before this Court. Therefore, I am of the opinion that since the trade mark has been registered at Chennai, which is evident from the certificates of registration dated 18.01.2006 and 28.10.2005 produced by the applicants, I am of the opinion that this Court has got jurisdiction to entertain the suit.
15. With regard to the second question, it is the contention of the respondents that though the applicants had the registered trade mark, the respondents have been using the mark AGREEGOLD since 1994. Therefore, they are the prior user of the mark. But it is the contention of the applicants that though the respondents are claiming that they have been using the mark since 1994, absolutely no document was produced before this Court to prove the same. on the other hand, the certificate of incorporation of the applicants in the name of AGRI GOLD Farms Limited issued on 09.11.1995 would show that they have been using the mark AGRI GOLD since 1995.
16. On a perusal of the records, I find that, as contended by the learned counsel for the applicants, though the respondents claimed that they have been using the mark AGREEGOLD since 1994, absolutely no document was produced by them to substantiate their contention. On the other hand, the bunch of invoices produced by the applicants in their typed set would show that from 2001 onwards the applicants have been using the mark AGRI GOLD. Further, the certificate of incorporation in the name of applicants companies would show that they have been using the word AGRI GOLD since 1995. Moreover, the mark AGRI GOLD was registered at the Registrar of Trademarks, Chennai in 2000 itself by the applicants. Further, a submission was made by the respondents that in some of the applications filed by the applicants before the Registrar of Trade Marks at Chennai on 13.02.2003, their status has been shown as "proposed to be used" and therefore, it has to be construed that even in the year 2003, the applicants have no registration over the trade mark. But this submission of the respondents cannot be accepted for the reason that in the year 2000, the applicants got the mark registered in respect of certain products, namely, chemical products, agriculture products etc., In the year 2003, they have filed application in respect of some more products to be registered in the name of AGRI GOLD and only in those applications, in respect of those products, the status of the applicants was shown in some of the applications filed in the year 2003 as ""proposed to be used". Since the status of the applicants is proposed to be used, it does not mean that only in the year 2003, the applicants have proposed to use the trade mark AGRIGOLD, particularly in the circumstances when they have already got a registration certificate for the mark AGRI GOLD in the year 2000 itself, which would show that they have been using the trade mark AGRI GOLD since 1995. Therefore, I am of the opinion that the respondents have miserably failed to prove that they are the prior user of the trademark.
17. With regard to the questions 3 and 4, they are interconnected with each other and hence, the said questions are dealt with hereunder.
It is the case of the applicants that the 2nd applicant has registered the trade name AGRI GOLD and he has permitted the 1st applicant and its group of companies to use the name. But, according to the respondents, absolutely, no documentary evidence was produced to show that the 2nd applicant has permitted the 1st applicant to use the trade name AGRI GOLD. It is the further submission of the learned counsel for the respondents that both applicants are claiming that they are the proprietors of the registered trade mark AGRI GOLD; but there cannot be two proprietors for a single trade mark. But I find that section 2(V)(r) of the Act says that "permitted use", in relation to a registered trade mark, means the use of trade mark....". Therefore, permission given to use the trade mark by a registered proprietor is recognised under the law. Since the 2nd applicant has permitted the 1st applicant to use the trade mark AGRI GOLD, it does not mean that there are two proprietors for a single trade mark. The very factum that the applicants have jointly filed the suit itself would show that the 2nd applicant has given permission in favour of the 1st applicant and its group of companies. Therefore, the submission made by the learned counsel for the respondents in this regard cannot be accepted.
18. With regard to the last question, it is the submission of the learned counsel for the respondents that they are dealing with only PVC pipes, tubes, rigid pipes and tubes whereas the applicants are dealing in farming activities including horticulture, herbal farms, cash crops, edible crops, energy plantations, etc., and therefore, there is no likelihood of causing confusion in the minds of the consumers. But it is the reply of the learned counsel for the applicants that the respondents, by using the trade mark AGREEGOLD, misled the public, trade upon the goodwill and reputation enjoyed by the applicants and thereby perpetuate fraud and deception on the public. The learned counsel for the applicants further submitted that the applicants are diversifying their business and they are having 64 registered trade marks in the name of the applicants and for so many products, they declared as "proposed to be used" in 2003. In this regard, the learned counsel for the applicants, by inviting the attention of this Court to the registration certificate dated 28.10.2005 submitted that the trade mark AGRIGOLD was registered for tubes also, which is one of the products of the respondents. The description of the goods in the said certificate is hereunder:
"gutta – percha, India rubber, materials for packing, stopping or insulating, asbestos, mica and their products, hose pipes, plastics in the form of sheets, blocks, robs and tubes." Therefore, it is incorrect to state that the applicants are not manufacturing the product which the respondent is manufacturing.
Further, in this regard, the learned counsel for the applicants submitted that by virtue of amended provision of section 29(4)(b), even the goods are not similar to those which the trade mark is registered, even then the applicants are entitled to restrain the respondents from infringing their registered trade mark. But the learned counsel for the respondents submitted that the line of business and activities of the respondent are totally different and as such, the applicants are not entitled to get an order of injunction since they are manufacturing a different product under the trade mark AGREE GOLD. In this regard, the learned counsel for the respondents relied on the following judgments in support of his contentions. In BalrkishnaHatcheries case (supra), a single Judge of Bombay High Court has held as follows:
"17.) Section 29(4) of the Trade Marks act, 1999 reads as follows:
(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which-
(a) is identical with or similar to the registered trade mark; and
(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and
(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.
18.) Thus, a registered trade mark is infringed even if the mark is used in relation to goods or services which are not similar, to those for which the trade mark is registered provided:
(i) the marks are identical or similar; and
(ii) the registered trade mark has a reputation in India;
(iii) the registered trade mark has a distinctive character or repute; and
(iv) the use of the mark without due cause takes unfair advantage of or is detrimental to the distinctive character or repute of the registered trade mark".
19. In Raymond Limited's case (supra), the Bombay High Court has held as follows:
"14.) Section (4) provides that registered trade mark may be infringed if the conditions therein are cumulatively present i.e. if the mark is identical with or similar to the registered trade mark and is used in relation to dissimilar goods and it has reputation in India and "the use of the mark without due cause takes unfair advantage of or its detrimental to, to the distinctive character or repute of the registered trade mark". Assuming that a part of entire name issued by the defendants is identical with the plaintiff's trade mark and may constitute an infringement even if it is not used in relation to the goods and services similar to those of the plaintiffs, still it does not constitute an infringement unless its use by the defendants is shown to be "without due cause" and "taking unfair advantage" of or is detrimental to the distinctive character or repute of the registered trade mark. So far as the last contention is concerned, the word "Raymond" appears quite appropriate for a company which manufactures medicinal products and one cannot imagine how the defendants can, by using the mark for its corporate name take unfair advantage of such use in its products from registered trade mark of the plaintiff which is used for entirely different products. In fact, from the point of view of a consumer, there is no association between the two products either having regard to the need for products shop in which they are available for their use. For the same reason one cannot imagine how the use by the defendants of the trade mark can be detrimental to the plaintiff's corporate or repute of the registered trade mark."
The dictum laid down in the said judgments throws a light with regard to the issue involved in the case.
20. A reading of the above judgments would show that when there is no association of two products, the plaintiff cannot imagine how the use by the defendants of the trade mark can be detrimental to the plaintiffs' registered trade mark. In the instant case, as contended by the respondents, the applicants are purely dealing with agricultural products, herbal products, cash crop,etc., whereas the respondents are dealing with P.V.C.pipes, tubes, rigid pipes and tubes. Hence, as contended by the learned counsel for the respondents, absolutely there is no connection between the applicants' business and the respondents' business. A shopkeeper who sells the farm products will not store or stock the rigid P.V.C.pipes. Therefore, absolutely the contention of the applicants that the respondents are doing business damaging the reputation of the applicants cannot be sustained. Though the learned counsel for the applicants submitted that they are also having a registered trade mark with regard to "tubes", absolutely no documentary proof was produced before this Court that they are dealing with the said product. Therefore, in my considered opinion, since the respondents are dealing with totally two different products by using AGREEGOLD and that too particularly in the part of northern India, it does not constitute an infringement unless its use by the respondents is shown to be "without due cause" and "taking unfair advantage" of or is detrimental to the distinctive character of the registered trade mark. It is the case of the applicants that since the applicants are the registered trade mark owner of AGRI GOLD, the respondents should be restrained from using the similar trade mark. But, I am of the opinion that when there is no association between two products, the applicants cannot imagine how the use by the respondents of the trade mark for a different product can be detrimental to the applicants' registered trade mark. There cannot be any confusion in the mind of the public when the products are totally different, that too, the respondents are doing major portion of the business at Northern India. Though the applicants had stated that they have registered trademark inclusive tubes, absolutely no documentary evidence was produced before this Court to show that they are dealing with the said product and as such, the balance of convenience is not in favour of the applicants. Therefore I am of the opinion that on this ground alone, the injunction already granted is liable to be vacated.
Accordingly, the interim injunction granted on 11.02.2010 is vacated and the application is dismissed.