SANTHIGIRI ASHRAM Vs. MOIDEEN HAJI

JUDGEMENT

(1.) This revision is directed against the finding on issue No. 2 in O. S.2 of 1986 of District Court, Trivandrum. The plaintiff is the revision petitioner.

(2.) The suit has been filed under S.105 of Trade and Merchandise Marks Act, 1958. The plaintiff is an institution by name "Santhigiri Ashram" represented by its secretary. The allegation in the plaint is that 'Santhigiri Ashram" was founded about 25 years ago for the uplift and spiritual development of men. It is a registered organisation having its branch Ashrams at Palarivattom, Kallar and Sultan Battery. The important activity of the plaintiff is in the medical field and medicines are manufactured and patients are treated both as inpatients and outpatients. "Santhigiri" is the Trade Mark designed by the plaintiff for the last more than 8 years in the medical field. The plaintiff further alleges that on 2-2-1986, the defendants published aa advertisement in Kerala Kaumudi daily that an institution in the name and style "Santhigiri Health Complex" would be inaugurated by a Minister. The use of the word "Santhigiri" was done with malicious intention of passing off their institution, service and products as that of the plaintiffs and therefore it violated the provisions of Trade and Merchandise Marks Act, 1958. The plaintiff states in the plaint that the cause of action for the suit has arisen when an attempted passing off was made by publishing the notice on 2-2-1986 in Kerala Kaumudi and continuously thereafter.

(3.) The jurisdiction of the court for the purpose of passing off action or infringement of Trade Marks is governed by the provisions of Civil Procedure Code read with S.105 of Trade and Merchandise Marks Act, 1958. As per S.20 of the CPC, the plaintiff has the option to institute suit either (1) where the cause of action has accrued or (2) in the forum of the defendant, i.e., where the defendant resides, or carries on business personally works for gain. This alternative is further clarified in the illustration to S.20 of the CPC. The present suit was instituted before the District Court, Trivandrum by virtue of the S.105 of Trade and Merchandise Marks Act and also on the basis that cause of action bad arisen by the publication of the advertisement in the Kerala Kaumudi daily on 2-2-1986. The defendants asserted that no cause of action bad been arisen by the publication of the notice and even in suit relating to passing off action, the suit should have been filed before District Court, Ernakulam since the defendants carry on business and sell their service and products at Kalamassery.