TaxTMI 
TaxTMI 
2010 (2) TMI 1310
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....n enquiry, the learned Single Judge has made an order revoking the leave already granted and consequent upon the same, the other application for rejection of plaint was closed, and the application for interim injunction was dismissed. Aggrieved over the same, the Plaintiff has brought forth these two appeals before this Court. 4. As could be seen from the materials available, the Plaintiff has filed the suit for the following reliefs: (a) A permanent injunction restraining the Defendant from manufacturing, selling, advertising and offering for sale Tea using same or similar get up, and colour scheme used by the Defendants shown in Document No. 2 and trade mark FAMILY TEA 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 Plaintiff's registered trade mark "ISPAHANI TEA" as shown, in Document No. 1 or in relation to any Tea and use the same pouches, packets or use the mark in invoices, letter heads and visiting cards or any other trade literature or by using any other trade mark which is in any way v....
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....ed that the Plaintiff has been spending huge money to promote the product and also there was lot of turnover. The Respondent who was actually engaged in the service of the applicant in 1980 after putting in service of 18 years, left the service. During the year 1998, he started a trading company by name Minor Tea Company and commenced manufacturing and marketing tea under the trademark FAMILY TEA with the deceptively similar colour scheme, get up and layout. Consequent upon the same, the Plaintiff filed a complaint to the police task force in the month of July 2001, and a case was registered in Crime No. 35 of 2001. The matter was taken up for trial by the II Metropolitan Magistrate's Court, Hyderabad, and the Respondent was convicted. But, when the said judgment was appealed against in C.A. No. 246 of 2003, on the file of the Sessions Court, he was acquitted. Thereafter, the Plaintiff filed a criminal revision case before Andhra Pradesh High Court, and the same is pending. After the order of acquittal, the Respondent had filed a suit for damages in O.S. No. 273 OF 2005, and the same is pending. Even thereafter, the Respondent had adopted the identical colour scheme, get up and....
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....ion of the Family tea wrapper since the Defendant was a former employee of the Plaintiff having served the Plaintiff for 18 years; that it is pertinent to note that the provisions of Section 62(2) of the Act and Section 134(2) of the Trademarks Act would not apply to the present facts of the case; that leave was originally granted to the Appellant since a part of cause of action had arisen within the jurisdiction of this Court; that the prima facie case, balance of convenience and irreparable loss were in favour of the Appellant, and hence the order of the learned Single Judge has got to be set aside. 9. The Court heard the learned Senior Counsel for the Respondent Mr. V. Prakash who made his sincere attempt of sustaining the order of the learned Single Judge. The Court paid its anxious consideration on the submissions made. 10. As could be seen above, it was a suit for permanent injunction against the Respondent alleging that the trademark and copyrights in question were exclusively owned by the Appellant. Admittedly, the Appellant/Plaintiff sought for the leave only on the ground that the trademark was registered with the Registrar of Trade Marks at Madras, and the cause of act....
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....ntrary to the above contentions, it is contended by the Respondent's side that no part of cause of action has arisen within the jurisdiction of this Court and hence, leave granted was rightly revoked. In order to substantiate their contention, the learned Senior Counsel for the Respondent relied on the decisions of this Court reported in 2007 (35) PTC 542 (Mad) (Parle Products Pvt. Ltd. v. Surya Food & Agro Ltd.) and 2007 (35) PTC 774 (Austin Reed Limited v. Suntex Garments and Ors.). 13. After considering the contentions put forth and also the settled principles of law in this regard, this Court is of the considered opinion that the Appellant has not shown any part of cause of action which has arisen within the local limits of this Court. Paragraph 30 of the plaint reads as follows: 30. The cause of action for the above suit for infringement and passing off arose from October 2007, when the Defendant resumed the sale of infringing goods after the order of acquittal and the Defendant's goods were available in the market bearing the deceptively similar wrapper FAMILY TEA. The cause of action continues to arise with every sale of the Defendant's impugned goods. Therefo....
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....n the month of February 2008 alleging that the Plaintiff has infringed the copyright of the Respondent. After issuing a reply therefore in the month of March 2008, the Plaintiff has brought forth the instant suit alleging that part of cause of action has arisen within the jurisdiction of this Court. This Court had an occasion to consider a similarly placed factual matrix in the following decisions: (i) It has been held in a case reported in 2007 (35) PTC 542 (MAD) (Parle Products Pvt. Ltd. v. Surya Food & Agro Lid.) as follows: 16. If there is nothing to show that sales have taken place within the jurisdiction of this Court, then leave cannot be granted. There is no other circumstance, which justifies the filing of the suit, within the jurisdiction of this Court because both the Respondent and the applicant carry on business elsewhere. Therefore, not only on the ground of forum convenience, but also because the applicant prima facie has failed to establish to the satisfaction of this Court that sales had in fact taken place within the jurisdiction of this Court, leave must be revoked. (ii) In a decision reported in 2007 (35) PTC 774 (Austin Reed Limited v. Suntex Garments and....