In a dispute with regard to
copyright infringement between Krishan Industries v. Kimti Lal
Sharma & Anr., a pertinent question with regard to territorial
jurisdiction was adjudged. Herein the suit was filed by Krishan
Industries under section 134 and 135 read with Section 27(2) of the
Trademarks Act, 1999 and under Section 51 of the Copyright Act,
1957 praying inter alia that Kimti Lal Sharma and any of
his agents be restrained from using any other trademark identical
or deceptively similar to that of his trademark and from passing
off their goods as those of his own. The other plea made by him was
that Kimti Lal Sharma should be ordered to deliver up all goods
bearing similar or deceptively similar trademark as that of his
packing materials, cartons broachers, stickers etc. having
trademark similar or deceptively to that of his own. It was also
prayed that he be directed to render the accounts of its trade
activities and should be restrained from disposing of or dealing
the assets as its own manufacturing units and premises or other
assets not known to him. He also claimed damages of Rs.
Coming to the issue of jurisdiction,
the title of the plaint disclosed that Krishna Industries was
located at Phagwara in Punjab and Kimti Lal Sharma was located in
Jalandhar, also in Punjab. The Jurisdiction of the Delhi HC was
invoked by Krishan Industries on the ground that Kimti Lal Sharma
was selling and marketing his goods in Delhi and soliciting trade
and business from Delhi and other parts of the country and has
filed the Trademark application in the office of Registrar of Trade
Mark , Delhi and has obtained registration of its Trademark on all
India basis including New Delhi. It was also contended that Krishan
Industries were selling its goods under the impugned trademark and
has goodwill and reputation about this trademark in Delhi which is
being tarnished by Kimti Lal Sharma's enterprise.
Since, neither of the parties to the
dispute were doing or working for gain in Delhi, the provisions of
Section 134(2) of the Trademarks Act or under Section 62(2) of the
Copyright Act or Section 20(a), (b) CPC could not be pressed into
service by Krishan Industries for invoking jurisdiction of this
Court. The only thing to be seen was said to be the issue whether
territorial jurisdiction of the Delhi High Court could be invoked
on the ground that goods produced by either of the parties were
being sold in Delhi. Krishan Industries herein did not give the
name of any shop or place in Delhi where the goods were being sold
by Kimti Lal Sharma and hence the alleged infringement taking
place. Except making vague and bald averments that the goods of the
defendants were being sold in Delhi, without giving any substantial
evidence in support of its averments and without placing on record
any bill of purchasing goods in Delhi, Krishan Industries invoked
the territorial jurisdiction of this Court.
The Court noted that the party being
from Phagwara, could have also filed the suit in Punjab where the
defendants were also doing business. Invocation of jurisdiction on
the basis of vague allegations that the goods of the defendants
were being sold throughout the country including Delhi made no
sense. The court stated that they could not be used as a tool to
put a heavy burden of litigation on the defendant at a far off
place so as to inconvenience him to defend his case.
Krishan Industries admitted that the
Kimti Lal Sharma was a registered owner of the Trademark, so no
case for infringement of trademark was made out against him, in
view of the provisions of Section 28(3) and 29 of the Trademark
Act. Thus the claim as against Kimti Lal Sharma could at the most
be one of passing off, the law being well settled in view of the
judgement in Dodha House v. SK Maingi, (2006) 9 SCC 41: 2006 (32)
PTC 1[SC] wherein it was held that it was possible that the goods
manufactured by the plaintiff were available in the markets in
Delhi or they are sold in Delhi, but that by itself would not mean
that the plaintiff carries on any business in Delhi. Placing
reliance on thejudgemnet, it was held that the Delhi HC had no
jurisdiction to entertain the instant suit and the plaint is liable
to be returned to Krishan Industries to be filed at the Court of
appropriate territorial jurisdiction.
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