TITLE: ITC Limited Vs. Britannia Industries Ltd.
Decided On: July 14, 2023.
A.No.3314 of 2023 in C.S.(Comm Div).No.153 of 2023.
CORAM: Hon’ble Ms. Justice P.T. Asha.
The plaintiff has approached this Court with a case that the defendant who was all along wrapping a particular brand of biscuits in a different colour and get up, has now imitated the trade dress of the plaintiff’s brand of biscuits.
The plaintiff who has approached this Court contemplating the grant of an urgent interim relief has been checkmated by the defendant, a giant in the consumer market; on a supposed plea that the suit filed requires to be rejected. The Court could apply its mind to the urgency in the application or the need for interim relief, the defendant had sought two adjournments for filing its counter and has then come forward with the application. If the defendant were keen on a settlement, they could have, on the very first hearing, expressed their desire to have the matter sent to the State Legal Services Authority for mediating the dispute. Infact, nowhere in the application has the defendant expressed their desire for settlement. On the contrary, the attempt is to try to have the plaintiff’s case dismissed at the threshold.
Legal Analysis and Decision:
The Defendant ITC Limited, appears to be engaged in marketing of the Impugned Product. The Defendant No. 1 has its office at Virginia House, 37 Jawaharlal Nehru Road Kolkata, West Bengal – 700071 and its office at Number 69, Muthuramalinga Thevar Rd, Austin Nagar, Nandanam, Chennai, Tamil Nadu. The impugned products of the Defendant are available for sale in Chennai, within the jurisdiction of this Hon’ble Court. Copies of the invoice indicating the sale of the infringing products are filed herewith in the present proceedings. The impugned products of the Defendant are also advertised on YouTube, extracts of which are filed herewith in the present proceedings. This Hon’ble Court has the necessary territorial jurisdiction to entertain and try the present action by virtue of Section 134(2) of the Trademarks Act, 1999 and Section 62(2) of the Copyright Act, as the suit is inter alia for infringement of registered trademark, trade dress and Copyright of the Plaintiff, being the registered proprietor of the trademark and as well as its copyright on the artistic work; the plaintiff’s is carrying on business within the jurisdiction of this Hon’ble Court. The Defendant is situated in Chennai and the infringing products are available for sale within the jurisdiction of this Hon’ble Court.
The argument of the defendant that since the suit is not filed under Clause 12 of the Letters Patent, this Court has no jurisdiction has to be repelled on the ground that the original side rules of this Court has been formulated only on the basis of the Letters Patent which has conferred jurisdiction on this High Court. Clause 11 confers the local limits of the ordinary original jurisdiction of the High Court and Clause 12 confers the Court with original jurisdiction as to the suits. The suit is filed under Order IV Rule 1 of the Original Side Rules which emanates from the Letters Pattent.
The below are the grounds on which the suit is challenged.
- Failure to comply the pre-mediation settlement contemplated under Section 12 A of the Act.
- Suit not instituted by a competent person.
- Lack of Jurisdiction.
It is crystal clear that the defendant’s are carrying on business within the jurisdiction of this Court. This coupled with the averments contained in the paragraphs of the plaint extracted supra clearly brings out the plaintiff has pleaded that the defendant is carrying on business within the Jurisdiction of this Court. Therefore, taking note of the fact that the suit is one filed in the original side of this Chartered High Court, which has been conferred with the power under Letters Patent, the argument of the defendant that the suit is not maintainable as it has not been filed invoking the provisions of Clause 12 is not maintainable and has to necessarily be rejected.
Since the plaintiff has pleaded that the defendant is carrying on business within the Jurisdiction of the court. Therefore, taking note of the fact that the suit is one filed in the original side of this Chartered High Court, which has been conferred with the power under Letters Patent, So the argument of the defendant that the suit is not maintainable as it has not been filed invoking the provisions of Clause 12 is not maintainable and it is rejected.
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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.