1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 25TH DAY OF NOVEMBER 2011 THE HON'BLE MR. JUSTICE VINOD K.SHARMA A.No. 4885 OF 2011 IN C.S. No.724 OF 2008 Physique India Ltd., B-2A, Gem Plaza, 66, Infantry Road, Bangalore - 560 001 Represented by its Director, Mr.Gopal Mohan Nair ... Plaintiff -Versus- Physique 518, Sector 37, Pace City-2. ... Defendant A. No.4885 of 2011:- Physique 518, Sector 37, Pace City-2. Gurgaon - Hstusms ... Applicant -Vs.- Physique India Ltd., Represented by its Director, Mr.Gopal Mohan Nair B-2A, Gem Plaza, 66, Infantry Road, Bangalore - 560 001. ... Respondent Application praying that this Hon'ble Court be pleased to revoke the leave granted by order dated 22.04.2008 in A.No.3262 of 2008 to sue the defendant. This application coming on this day before this court for hearing the court made the following order: This application has been moved by the https://hcservices.ecourts.gov.in/hcservices/ 2 applicant/defendant, for revoking the leave granted, vide order dated 22.04.2008, in Application No.3262 of 2008, to sue the defendant. 2. The plaintiff/non-applicant has filed a suit, in this Court, praying therein as under:- "(a) granting a permanent injunction, restraining the Defendant, by itself, its servants, agents, distributors, or anyone claiming through him from manufacturing, selling, advertising and offering for Sports and Playthings, Gymnastics & Sporting Articles for personal use using same or similar trade mark PHYSIQUE or any other visually similar mark or in any media and use the same in invoices, letter heads and visiting cards or by using any other trade mark, which is in any way visually or deceptively or phonetically similar to the Plaintiffs' registered trade mark "PHYSIQUE" in relation to any for Sports and Playthings, Gymnastics & Sporting Articles for personal use and use the same pouches, packets or use the mark in invoices, letters heads and visiting cards or any other trade literature or by using any other trade mark, which is in any way visually, or phonetically similar to the Plaintiffs' registered Trade Mark No.804328 in class 26 or in any manner infringe the Plaintiff's registered Trade Mark. (b) directing the Defendant to surrender to the Plaintiffs all the packing material, cartons, advertisement materials and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing deceptively similar Trade Mark PHYSIQUE or other deceptively similar trade mark used in the pouches and packets in respect for Sports and Playthings, Gymnastics & Sporting Articles for personal use. (c) directing the Defendant to render an account of profits made by them by the use of the impugned trademark PHYSIQUE on the goods referred and decreed the suit for the profits found to have been made by the https://hcservices.ecourts.gov.in/hcservices/ 3 Defendant, after the Defendant has rendered accounts and (d) directing the Defendant to pay to the plaintiffs the costs to the suit." 3. The applicant/defendant is, admittedly not residing within the jurisdiction of this Court and is, not marketing the goods within the jurisdiction of this Court. The jurisdiction of this Court has been invoked by the plaintiff/non-applicant, for the reason, that the trade mark, which is alleged to have been infringed was registered at Chennai. 4. Paragraph No.27 of the plaint reads as under:- "27. This Hon'ble Court has got jurisdiction to entertain and try the suit since the appropriate office of the Plaintiff's registered Trade Mark is situate at Chennai within the jurisdiction of this Hon'ble Court. The Plaintiffs Trade Mark was applied for and registered at the Trade Mark Registry at Chennai since its registered office is situated at Bangalore. The appropriate office of the Trade Mark Registry of the subject Trade Mark is at Chennai. Since the office of the Trade Mark Registry at Chennai is situated within the jurisdiction of this Hon'ble Court, this Hon'ble Court has got jurisdiction to entertain and try the suit. The Plaintiff is also filing an Application seeking leave to sue since a substantial part of the cause of action with respect to infringement of registered Trade Mark has arisen within the jurisdiction of this Hon'ble Court." 5. Keeping in view the fact, that the cause of action to maintain the suit to the plaintiff/non- applicant also arose within the jurisdiction of this https://hcservices.ecourts.gov.in/hcservices/ 4 Court, this Court, in exercise of jurisdiction under Clause 12 of the Letters Patent, granted leave to the plaintiff to sue the defendant in this Court. 6. The learned counsel for the applicant/defendant challenged the grant of leave to appeal, by contending that the applicant/defendant is not residing within the jurisdiction of this Court nor any commercial business is being carried out within the jurisdiction of this Court therefore, no cause of action can be said to have arisen, within territorial jurisdiction of this Court, therefore the order of leave be revoked. 7. In support of this contention, the learned counsel for the applicant/defendant referred to paragraph No.27 of the plaint, reproduced above, to contend that it is admitted case of the plaintiff/non- applicant, that the defendant is not carrying on business within the jurisdiction of this Court, and that the mere registration cannot give cause of action, or in any case being a very weak cause of action, cannot be a ground on which this Court could grant leave to sue the defendant in this Court. 8. In support of this contention, the learned counsel for the applicant/defendant placed reliance on the judgment of this Court in the case of M/s. Dureflex Pvt. Ltd., Vs. M/s.R.P.Home Private Limited https://hcservices.ecourts.gov.in/hcservices/ 5 (A.No.323 of 2007), in C.S.D.No.36288 of 2006 decided on 29.08.2007), wherein, leave prayed on the ground of the trade mark having been registered within the jurisdiction of this Court, was declined. 9. There can be no dispute with the proposition canvassed by the learned counsel for the applicant/defendant, that this Court can decline the leave, but the question here is whether in exercise of discretion of this Court to grant leave, can be revoked, on this ground. 10. The Hon'ble Division Bench of this Court, in the case of Ramu Hosieries, rep. by M.Murugeshan Vs. Ramu Hosieries, rep. by Pandela Ramu [1999 PTC (19) 183 (DB)], was pleased to lay down as under:- "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 https://hcservices.ecourts.gov.in/hcservices/ 6 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." 11. The above referred judgment has been followed by this Court in the case of S.P.S. Jayam & Co., Vs. Gopi Chemical Industries, India (1997 Madras Law Journal, 286.) and the other judgment. 12. It is the consisted view of this Court, that registration of trade mark gives a part of cause of action to the plaintiff to maintain the suit, at a place where the trade mark is registered. 13. Once the part of cause of action is admittedly arisen within the jurisdiction of this Court, as trade mark was registered at Chennai and this Court has granted the leave to sue, by exercising jurisdiction under Clause 12 of the Letters Patent, it will not be open for the successor of Court, to take a different view to revoke the leave already granted. The leave can only be revoked in cases where a positive finding is recorded that suit as framed is not competent in this Court, and not on the ground that view different to the one taken would have been better. https://hcservices.ecourts.gov.in/hcservices/ 7 14. Consequently, this application is dismissed. No costs. Sd/-V.K.S.J 25.11.2011 //Certified to be a true copy// Dated this the day of 2012. R.s/04.09.2012 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/