K B VENKATACHALA MUDALIAR Vs. VANAJA MATCH WORKS

JUDGEMENT

(1.) THE respondent in Application Nos. 3690 & 3691/87 as plaintiff filed the suit No. 156 of 1986 alleging that he had been manufacturing safety matches from the year 1955 and in the course of the trade using, in connection with safety matches manufactured by him, a distinctive trade mark'national Park'with the device of a standing stage with a peculiar colour scheme and get-up with a view to indicate that such goods are of his manufacture and he had also registered the same under the trade and Merchandise Marks Act, 1958 and he has acquired valuable good will of the said trade mark because of its excellent and high quality standard. While so, during the middle of March 1986 he came to know that the defendant/applicant had commenced manufacturing and selling safety matches using an identical trade mark'running Deer'together with the device of 'standing stag'with an identical coulour scheme and get up. THE defendant has deliberately copied the plaintiff's well established trade mark'national Park'together with the device of standing stage by using an identical'running Deer'trade mark label along with the device of standing stag with an identical colour scheme and get up. Hence the defendant is guilty of infringing the plaintiff's trade mark. Under such circumstances he has filed the suit for a permanent injunction restraining the defendant from using the offending trade mark'running Deer'together with standing stage. Along with the plaint he has filed Application No. 1402 of 1986 for an order of interim injunction and in the said application ad-interim injunction had been granted by S. A. Kader , J. on 20. 3. 1986.

(2.) THE plaintiff did not seek permission to sue the defendant even though he has stated that the defendant is a proprietary concern, carrying on manufacturing and sale of safety matches at No. 1/48, Thottithorai , Mottur village, Morasapalli , Gudiyattam , North Arcot District.

(3.) THE point that arises for consideration in these applications is as to whether the plaint has to be rejected for not obtaining leave to sue in view of the allegations made in the plaint that the defendant is carrying on manufacturing and sale of safety matches at Gudiyattam in North Arcot District and in view of the fact that the defendant is shown to be residing and carrying on business beyond the jurisdiction of this Court.