India: P.M. Diesel’s Plaint Returned

Last Updated: 17 September 2008

Litigation in Intellectual Property although conforms to the general practices and procedures of civil litigation, the determinants of objections raised under the Procedural Code many a times lie in the intricacies associated with the facts governing the existence of intellectual property. In a suit dealing with admissibility of a Plaint filed under Order VII of the Civil Procedure Code, 1908 P.M. Diesel Ltd. v. Patel Field Marshall Industries [IA Nos.2381/2000, 7387/1999, 13850/2006 in CS (OS) 1612/1989] heard at the Delhi High Court witnessed such a scenario.

The trade mark "FIELD MARSHALL" associated with Patel Field Marshal Agencies as well as Patel Field Marshal Industries was used with respect to the marketing of their goods of the same kind and description, as those of the P.M. Diesel. The mark is used in relation manufacture, export and marketing of diesel oil engines, centrifugal pumps, electric motors and their component parts in which the parties are engaged.

P.M. Diesel claimed to have been using the mark from the year 1963 in all its trade literature, bill books, pamphlets, stickers, etc. They also rendered their turnover and expenditure with respect to the same and stated that a great deal of reputation and goodwill built over these years owing to the continuous and extensive use of the mark. They alleged Patel Field Marshall to be conducting their business from the same premises and to have common partners. They also averred that the co-party of Patel Field Marshall was the distributor of its goods between 1965 and 1970, when the latter only sold goods manufactured by P.M. Diesel and during which time it had adopted the mark "Patel Field Marshal Agencies".

P.M. Diesel stated that in the year 1982, and subsequently in 1983 it learnt that 'Patel Field Marshal Industries' and 'Patel Field Marshal Agencies' had been applied for registration . They averred P.M. Diesel had asked then to desist using the marks and withdraw the applications and that the same had not been adhered to. They claimed to have initiated opposition proceedings and that the same stood pending at the time this suit was being heard. They further learnt that in June 1989, that partners of Patel Field Marshall were planning to incorporate a company, whose trading style contained the phrase "Field Marshall", which they proposed would carry out similar to that of P.M. Diesel. In this pursuance, P.M. Diesel issued caution notices in newspapers and also wrote to the Registrar of Companies, Ahmedabad raising an objection to the incorporation of the company. They also claimed that Patel Marshall was aware as to the pre-existing proprietor of "Field Marshall" and that their act was to dishonestly and unlawfully appropriate the goodwill appended to the mark. On learning of such incorporation, the cause of action to file the suit arose, invoking relevant provisions of the Trademarks Act alongside S. 62 (2) of the Copyright Act, 1957.

The Court Referring to leading cases including M/s Dhodha House vs. S.K. Maingi with M/s P. M. Diesels Ltd vs. M/s Patel Field Marshall Industries and Ors AIR 2006 SC 730, also laid due consideration to the earlier orders. As under Order VII Rule 11 counsel for P.M. Diesel sought to object to its maintainability, urging that the question of jurisdiction could not be gone into under that particular provision. However, during the course of hearing, it was agreed by Patel Field Marshall that the application could be treated as one under Order VII Rule 10, and arguments of parties, be heard on that basis.

The counsel for P.M. Diesel further urged that the plaint did not disclose any part of the cause of action neither accrued in favour of the plaintiff within the territorial limits of this court's jurisdiction. They stated their place of business to be entirely outside the jurisdiction of the present court. A plethora of judgments were relied on and the Counsel submitted that despite voluminous documentary evidence, there was no material to connect any sale of the Patel Field Marshall's product.

The counsel for P.M. Diesel urged in reply that the court while deciding the present application, should not look into the merits, or consider the effect of various documents filed by the parties. They stated that the scope of inquiry should be limited to whether the plaint discloses any cause of action, which occasions the filing of the suit, and whether such cause of action, in terms of the averment, are prima facie, within jurisdiction of this court. They urged that adoption of any other approach would, in the submission of the counsel, be contrary to well established principles, and amount to prejudging the merits of the case.

The Court deduced in consideration of the various factors that the suit deserved to be returned and P.M. Diesel was ordered to bear costs amounting to a sum of Rs. 30,000.

© Lex Orbis 2008

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