LALLI ENTERPRISES Vs. DHARAM CHAND

JUDGEMENT

(1.) The respondent has been served. There is no appearance on behalf of the respondent. We have heard the learned Counsel for the appellant. After hearing the Counsel, weare of the view that the impugned judgment dated 11th February, 2000 cannot be sustained. Briefly the facts are that the plaintiff/appellant filed a suit for passing off trade mark and infringement of copyright besides rendition of accounts against the defendant. Plaintiff is said to be manufacturing match boxes for the last about five years under the trade mark "A.B.C. (label)" and selling the same with label/ carton /wrapper in distinct and artistic design and have acquired a copyright. It was alleged that the defendant/respondent recently started manufacturing and marketing match boxes adopting identical and deceptively similar trade mark "A.D.C. (label)" thereby infringing the plaintiff's trade mark and passing off his goods as those of plaintiff. The learned Single Judge has rejected the plaint at the threshold without issuing summons to the defendant holding that the suit does not disclose any cause of action. This appeal is directed against the said order of the learned Single Judge. Mainly the learned Single Judge has rejected the plaint on the following grounds: (a) Such a suit lies only against the manufacturer of the article in question and the defendant is not shown to be the manufacturer. (b) The plaintiff has not produced any cash memos to show the sale of the infringing article. (c) That this Court has no territorial jurisdiction to deal with the matter.

(2.) After hearing the learned Counsel, we are of the view that all the reasons given by the learned Single Judge in support of the impugned judgment are not sustainable. It is not correct to say that an action of the present type lies only against the manufacturer of the goods. It can lie against any party involved in the infringement chain. So far as the production of cash memos is concerned, it is not necessary. One thing which has to be kept in view is that such clandestine sales are often without cash memo. Secondly, the averment regarding sale in the plaint is enough at least at the stage when summons to the defendants are to be issued in the suit. At that stage only the averments in the plaint are to be seen. The learned Counsel has relied on a judgment of this Court in M/s. Jawahar Engineering Company and Others v. M/s. Jawahar Engineers Pvt. Ltd., reported as 1983 PTC 207. Similarly, at this stage it could not have been said that this Court does not have territorial jurisdiction to try the suit. The averments in the plaint are sufficient for present purposes. The aspect of territorial jurisdiction can be, if at all considered at a later stage it may require evidence to be led to determine territorial jurisdiction. Accordingly the impugned judgment is set aside. The matter is remanded for trial of the suit in accordance with law. Let the suit be placed before the learned Single Judge for being proceeded with further.

(3.) The appeal stands disposed of. Since the respondent is ex parte, there will be no order as to costs