K T PAVUNNY Vs. K T MATHEW

JUDGEMENT

(1.) The revision petitioners are defendants 1 and 2 in O. S. No. 247 of 1978 of the Sub Court, Ernakulam, and the respondent, the plaintiff in that suit. The suit was for a permanent injunction to restrain the petitioners from carrying on business in the name of "Victory Press Offset Printers" or any other name likely to mislead or deceive the public into the belief that the press run by defendants is the same as the plaintiff's business known as 'Victory Offset Printers' or any such other name allied to that. According to the plaintiff he started a Press at Kunnamkulam by name Victory Offset Printers. This press earned a name and reputation throughout Kerala and outside as one of the best printing establishments. Several leading institutions and the public were impressed with the excellence of the printing and the business methods adopted by the plaintiff. The defendants knowing about this, in an attempt to divert the plaintiff's business to them, made arrangements to start another press at M. G. Road, Ernakulam, with the name "Victory Press Offset Printers". According to the plaintiff, this act of the defendants was clearly to pass off the new business as that of the plaintiff. The defendants, inter alia, contended that the suit was in effect a passing off action within the meaning of Section 105 of the Trade and Merchandise Marks Act and as such the suit should have been instituted in the District Court and no court subordinate to it could entertain the same. The Court below considered this question as a preliminary issue and held that the suit was maintainable in the Sub Court. Hence this revision.

(2.) Section 105 of the Act reads: "Suit for infringement, etc., to be instituted before District Court.-- No suit-

(3.) Section 105 occurs in Chapter XI. Therefore, while dealing with this section, the relevant definition of the word 'trade mark' is found in Section 2 (v) (ii). This part of the definition defines trade mark as "a mark used or proposed to be used in relation to goods", that is, it need not be a registered trade mark. But it must be a mark in relation to goods. 'Mark' in Section 2 (1) (j) includes among other name. Therefore, what falls for consideration mainly in this case is whether the passing off action in this case relates to a name in goods or not.