CS(OS)--2047/2013. Case: INDOVAX PVT. LTD Vs. MERCK ANIMAL HEALTH AND ORS. High Court of Delhi (India)
| Case Number | CS(OS)--2047/2013 |
| Citation | NA |
| Judgement Date | July 27, 2017 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Decided on: 27 + CS(OS) 2047/2013 & I.A. 17022/2013
INDOVAX PVT. LTD ..... Plaintiff Through: Mr. Mohit Chaudhary, Mr. A.
Ms. Rashi Bansal and Ms. Agarwal, Advocates.
versus
MERCK ANIMAL HEALTH AND ORS ..... Defendants Through: Mr. Sachin Datta, Sr. Advocate
Mr. Ashwani Balwan and Ms. Chandra, Advocates.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
IA No. 3417/2014 (by D-3 U/o VII R 11 and u/O VIII R 1 r/w S. 151 CPC)
1. Vide this application, the defendant No.3 has challenged territorial jurisdiction of this Court. The present suit was initially the plaintiff for infringement of its trade mark and passing Subsequently, by way of amendment of the plaint, the plaintiff deleted relief for infringement of its trade mark which fact is clear from the order of
this Court dated 18.11.2013. The suit of the plaintiff now remains for of passing off.
2. In the application, the applicant has alleged that this Court territorial jurisdiction on the ground that for a suit for passing off, territorial jurisdiction of the Court has to be determined under Section 20 of Civil Procedure Code (hereinafter referred to as „CPC‟). It is alleged the defendants are neither residing nor carrying on the business in per the averments in the plaint itself. It is further submitted that no cause of action has also arisen within the territorial jurisdiction of this Court. benefit of Section 134 of Trademark Act is not available in a suit of passing off action . It is submitted that the plaintiff had initially filed a suit basis of a single invoice issued in Jind, Haryana in support of his contention that cause of action had arisen within the jurisdiction of this Court other document was filed along with the original plaint to prima facie
that the cause of action had arisen within the jurisdiction of this Subsequently, however, the plaintiff filed on record three invoices of „Baxi Medical Stores‟ in Delhi on 16th November, 2013 along with amended plaint. These invoices are dated October 29/30, 2013 i.e.
after the filing of the present suit. These invoices purported to be issued not
to the plaintiff but to the third parties i.e. Yadav Research & Breeding Farm, S.K. Breeding Farm and Kegg Farms (P) Ltd and there is no pleading document to establish any connection of these three entities to the or to the defendants and there is no explanation as to how the plaintiff obtained any of these three invoices. It is further contented that the Commissioner, appointed by the Court vide its order dated 18.11.2013, ascertain the source from where Baxi Medical Stores obtained the medicines which it sold under these three invoices. The Commissioner in its report dated 26th November, 2013 has clearly that Baxi Medical Stores sourced the stock from Karnal, Haryana and the proprietor of the said store had also admitted that he is not a of defendants and had merely procured the three vials of INNOVAX from outside Delhi. It is submitted that these facts clearly that these three invoices had been filed by the plaintiff to set up territorial jurisdiction in Delhi and thus the plaintiff is engaging in shopping. It is submitted that these three invoices which were neither issued by defendants nor by any of their authorized representative/ dealer are sufficient to give territorial jurisdiction to the Delhi Courts. It is contended that admittedly the defendants are neither residing nor
on its business nor have any manufacturing unit within the jurisdiction this Court. This Court therefore lacks territorial jurisdiction and the plaint is liable to be returned.
3. The application is contested by the plaintiff. It is contended that Court has the territorial jurisdiction since the defendant‟s vaccines impugned trademark is available for sale in Delhi and also that defendants through their agents are peddling their vaccines in Delhi. unamended suit, the plaintiff had relied on an invoice dated which shows that the defendants are passing off their goods Balvindra Medical Hall. The plaintiff‟s client namely Chaudhary Farm, Najafgarh, New Delhi had purchased the goods of the from Chaudhary Poultry Farm and this fact is sufficient to give to the Court. The plaintiff in an amended plaint has explained that suit came up for hearing before the Court on 25.10.2013, in order to the judicial conscience of the Court on the issue of territorial sought permission to produce more invoices to show the sale defendant‟s vaccines in Delhi. It, thereafter, conducted investigations learned that Baxi Medical Stores located in Khanna Market, Tis possess the defendant‟s vaccines for sale and after sustained
learnt on 29.10.2013 and 30.10.2013 that defendant‟s goods under impugned trademark INNOVAX were sold by Baxi Medical Store to different persons in Delhi. The plaintiff thereafter requested Kegg Farms (P) Ltd (one of the three buyers) to provide copy of the invoices issued by Medical Store and thereafter obtained the invoices of other two sales Baxi Medical Store. As soon as the plaintiff got the invoices, it moved application under Order 6 Rule 17 of CPC whereby it deleted its prayer infringement of its trademark by the defendants and also included invoices in the amended plaint. It is further contended that the Court satisfied that it had territorial jurisdiction and that is why the Court the amendment and issued the notice to the defendants. It is not that the Local Commissioner visited Baxi Medical Store and recorded statement of the proprietor . The proceedings conducted by the Commissioner were filed by him in the Court. It has been contended the defendants have nowhere denied that Dev Enterprises is not defendant‟s authorized distributor or agent. It is further contended question of jurisdiction is a mixed question of law and fact. It is that the report of the Local Commissioner clearly establishes the fact the defendant‟s medicines are available for sale in Delhi. It is
that sale through consignee or the distributor is sufficient for this have territorial jurisdiction. It is further submitted that defendants filed an application for registration of trademark INNOVAX in Delhi this would give rise to a threat perception in the mind of public that goods of defendants are to be sold in Delhi and that would be sufficient give the jurisdiction to this Court. On these contentions, it is prayed that the application has no merit and the same is liable to be dismissed.
6. The contention of the defendants is that neither they nor any of representatives is selling the vaccine in Delhi nor they have dealers within the territorial jurisdiction of Delhi and hence this Court no jurisdiction and the suit is liable to be dismissed.
7. It is argued by learned counsel for the plaintiff that while determining the question of jurisdiction upon an application under Order 7 Rule Court has to rely only on the averments of the plaint and accept it gospel truth. Reliance is placed on Exphar S.A. vs. Laboratories Ltd, AIR 2004 SC 1682, LT Foods Limited vs.
Foods (India) Ltd, 210 (2014) DLT 721, Saleem Bhai & Ors vs. Maharashtra & Ors, (2003) 1 SCC 557 and Tata Iron & Steel Co. Ltd. vs. Mahavir Steels & Others , 47 (1992) DLT 412 . It is further argued
actual sale of the product within the jurisdiction of a Court is not for an act of passing off where there is an intention to sell and the makes out a prima facie case of such intention, this Court has the jurisdiction. Reliance is also placed in the case of Pfizer Products, Rajesh Chopra & Ors, 2006 (32) PTC 301 . In this case, the have already applied for registration of its trade mark within Delhi, plaintiff has a substantial threat against the defendants from selling goods in Delhi and thus this Court held that it has the jurisdiction.
9. Learned counsel for the plaintiff has also relied on the findings in case of L.G. Corporation & Anr. vs. Intermaket Electropasters (P)
Anr, 2006 (32) PTC 429 (Delhi) and argued that in this case also, this Court gave findings that the Courts in Delhi have territorial jurisdiction ground that the infringing goods were being sold in Delhi.
10. Learned counsel for plaintiff has also relied on the findings case of Novartis A.G. vs. Crest Pharma Pvt. Ltd & Anr, 2009 (Del.) and argues that in this case, this Court has categorically held mere averments in the plaint is sufficient to invoke the jurisdiction Court and where the defendants‟ products are available in Delhi their agents and if such averments are made in the plaint, then
averments are sufficient to prove the factum of goods being available Delhi. Learned counsel for the plaintiff has also argued that the goods have adopted a distinctiveness in the market and any goods carrying a trade name which is deceptively similar to that of plaintiffs, is cause confusion in the mind of public and the public would think that were buying the goods belonging to the plaintiff. It is argued that defendant‟s trademark INNOVAX is deceptively similar to that plaintiff‟s trademark INDOVAX and the public buying the vaccine be buying it under the confusion that it is buying the product of while, in reality, they were buying the products of defendants. submitted that on account of this, the cause of action of passing off arisen in favour of the plaintiff and the reliance has been placed on Hotels Limited vs. Unison Hotels Ltd, 2004 (28) PTC 404 (DEL)
counsel for the plaintiff has also argued that the sale to distributor to commercial sale and has relied on the findings of the case Glen Mills Inc. vs. Vaspar Concepts Pvt. Ltd & Anr, 60(1995) DLT 616 .
also argued that the adoption of trading style/corporate name also to infringing the trademark and relied on findings in the case Lakshimkant V. Patel vs. Chetanbhat Shah, AIR 2002 SC 275 .
further argued that the marks have to be determined as a whole and relied on the findings in the case of Novartis A.G. (supra) . Learned counsel plaintiff has also relied on the findings of Exphar S.A...
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