P.M. SWAMY Vs. K. SULTAN MOHIDEEN

JUDGEMENT

(1.) THE second appeals came up before us on a reference by one of us, as the main question involved, the extent to which Section 73 of the Trade Marks Act governed the forum for instituting suits in a passing off action, in respect of goods covered by a registered trade mark, was not settled by any decision of this Court. The appeals themselves arose out of proceedings in execution of the decree in O.S. No. 1394 of 1950 on the file of the City Civil Court. The defendant, judgment -debtor under that decree, is the appellant before us. The decree in that suit was ultimately passed ex parte the defendant. The decree granted the following reliefs, which were what the plaintiff had specifically asked for:

(2.) THE claim in the plaint was that the plaintiff was a reputed snuff manufacturer since 1920, and that his product was being marketed under the trade name K. S. Sahib's Snuff Factory and under the trade mark comprising the words K. S. Madras Snuff ' packed in labels of special design and colour containing a pictorial representation. That trade mark was registered by the plaintiff under the Trade Marks Act, 1940. The reliefs the plaintiff sought were set out in paragraphs 15 to 18 of the plaint and were summarised in sub -paragraphs 1 to 4 of paragraph 22 of the plaint. Paragraphs 2 to 15 of the plaint contained allegations on proof of which the plaintiff claimed he was entitled to the reliefs mentioned above.

(3.) A reading of the plaint taken as a whole left no room for doubt, that the cause of action was also based upon the alleged infringement of the trade mark, which was undoubtedly registered in the name of the plaintiff under the Trade Marks Act. In paragraph 6 of the plaint the plaintiff averred: Under the provisions of the Act, plaintiff is the registered owner and proprietor of the said trade mark entitled to legal protection in respect of infringement of his rights and against colourable imitations thereof.