SABMILLER INDIA LTD Vs. JAGPIN BREWERIES LTD

JUDGEMENT

(1.) THE Plaintiff has filed the above suit alleging that the Defendant is guilty of infringement of the Plaintiff's registered trade mark 'HAYWARD 5000' and 'FIVE THOUSAND' bearing Nos. 436744 and/or 1521743 both in class 32 by using in relation to beer the trade mark "COX 5001" and is guilty of passing off its goods as and for the goods of the Plaintiff. The Defendant has contended that the present suit is barred under Order II Rule 2 of Code of Civil Procedure, 1908.

(2.) IN view thereof, this Court by its order dated 13th March 2013 has framed the following issue as a preliminary issue:

(3.) MR . Anand appearing for the Defendant, submits that though the Plaintiff became aware of the Defendant's use of the bottles bearing the trade mark COX 5001 in or about the first week of September 2011, the Plaintiff in its earlier Suit No. 652 of 2011 filed before the High Court of Madras, restricted its claim to infringement of its registered Design No. 223479 and passing off the Defendant's bottles embossed with the mark SABMILLER and/or SABMILLER INDIA as and for the bottles of the Plaintiff embossed with the mark SABMILLER and/or SABMILLER INDIA. He submits that the Plaintiff deliberately omitted to sue the Defendant in respect of the causes of action for infringement of trademark 'HAYWARDS 5000' and 'FIVE THOUSAND' bearing Nos. 436744 and 1521743 both in class 32 and passing off the Defendant's beer bearing the trademark COX 5001 as and for the Plaintiff's beer bearing the trade mark HAYWARDS 5000. He submits that the Plaintiff ought to have included all the causes of action in the previous suit filed before the Madras High Court and ought to have claimed all the reliefs in one suit.