DABUR INDIA LIMITED Vs. K R INDUSTRIES

JUDGEMENT

(1.) The defendant contends that this Court has no territorial jurisdiction to entertain the instant suit filed by the plaintiff. Therefore, this application is filed under the provisions of Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure (CPC) seeking dismissal of the suit on this ground. Suit is titled as suit for permanent injunction restraining infringement of copyright, passing off, rendition of accounts, delivery up, damages, etc. Thus, it is a composite suit which includes several cause of action. What needs to be mentioned at the outset is that insofar as alleged infringement of passing off is concerned, the suit is filed under the provisions of the old Act i.e. Trade and Merchandise Marks Act, 1958. Therefore, provisions relating to the territorial jurisdiction as contained in the said Act (hereinafter referred to as 'Act of 1958') shall be applicable.

(2.) The plaintiff is a manufacturer of large range of pharmaceutical, toiletries arid medicinal preparations. In the present case, the two products of the plaintiff with which we are concerned with is DABUR RED TOOTH POWDER or DABUR LAL DANT MANJAN. The case set up by the plaintiff is that in the year 1993, it adopted a unique colour combination and arrangement of features which was subsequently changed in December, 1999. The carton adopted in December, 1999 is extremely popular. This new carton while retaining the conical shape and white cap adopted the following features.

(3.) It is claimed by the plaintiff that the aforesaid is also an artistic work within the meaning of Section 2(c) of the Copyright Act. It has been designed for and on behalf of the plaintiff by Mr. Ajmer Singh of Mudra Communications Ltd. and the same has been assigned by Mr. Ajmer Singh to the plaintiff. Therefore, the plaintiff is the proprietor of the copyright and unauthorized reproduction of a carton by anybody would amount to infringement of the plaintiff s copyright vested in it. The grievance made in the plaint is that the defendant was also manufacturing and marketing Red Tooth Powder in an identical colour scheme, layout, arrangement of features and getup as that of the plaintiff's. The carton of the defendant is in red colour, conical in shape and a white cap. It is alleged that the defendant had the plaintiff's carton in mind while creating their own and the adoption and use of impugned packaging/container by the defendant is dishonest and amounts to passing off the goods of the defendant as that of the plaintiff as it would cause confusion in the minds of unwary classes of customers with imperfect recollection and also amounts to infringement of the plaintiff's copyright. With regard to jurisdiction of this Court, following averments are made in para 18 of the plaint: