R PANEERSELVAM Vs. MOHAMMED RAFI

JUDGEMENT

(1.) THE Plaintiff, who is engaged in Seeval business from 5.11.1984 in Tamil Nadu, has been buying new aricanut from growers and merchants, sort, grade and clean them, slice them, mix them with several ingredients and packet them is different sizes for ready consumption in the market. This product has been marked throughout with the trade mark "Appu Seeval'. THE trade mark consists of a dancing elephant on a globe with the word Appu printed on the left and Seeval printed on the right. THE packets are sold in different quantities. THE plaintiff has also registered his business as a small Scale Industrial Unit with the Department of Industries and Commerce. THE plaintiff has developed his business and his turnover is in the region of Rs. 60, 00/- per month. THE plaintiff has also availed bank loan for his business.

(2.) WHILE so, the plaintiff came to know that the defendant has also started Seeval business with the trade mark 'Appu Seeval'. The defendant has also been circulating the news that the he has secured the registration of 'Appy Seeval' as a trade mark under the Trade and Merchandise Marks Act, 1988 (hereinafter referred to as the Act) but on verification it was found that the statement is not correct. The defendant's trade mark is also identically similar to that of the plaintiff. The defendant has not registered his trade mark but has only filed an application for registration with the Registrar of Trade Marks on 13.1.1988 of the trade mark consisting of words ' Appy Seeval, and pictorial representation identical to that of the plaintiff's trade mark. The defendant's application in Class 31 has been assigned the number 484155 by the Registrar of Trade Marks. In that application the defendant claimed the user of the above mark since 1987. Whereas the plaintiff is the continuous user of the mark from 1984. As such, the plaintiff has become the owner of the trade mark consisting of the words 'Appu Seeval' and the pictorial representation of the dancing elephant on the globe. Even according to the representation made by the defendant before the Registrar of Trade Marks, he has been using the trade mark since November, 1987.

(3.) THE suit itself was filed by the plaintiff after obtaining leave to institute the suit in application No. 863 of 1988. THE defendant has filed Application No. 1283 of 1988 to revoke the leave granted stating this Court has no jurisdiction since the defendant is carrying on business only in the area of Kumbakonam in Thanjavur District and his products are manufactured and marketed only in that area, He has not expanded his business to any other area, according to the defendant, no part of the cause of action arises in Madras. His application to the Registrar of Trade Marks will not give any cause of action to the plaintiff. THE plaintiff should have filed the suit only in the Court of the District where the goods manufactured and marketed. THErefore, the leave already granted has to be vacated.