(1.) This Leave Petition under Clause XIV of the Letters Patent is taken out by the petitioner/plaintiff in a trademark infringement and passing off suit. The Leave Petition is filed on the basis that the plaintiff's suit for infringement of its registered trade mark is maintainable before this Court and that under Clause XIV of the Letters Patent, the plaintiff be permitted to combine the cause of action of passing off with the cause of action for infringement of trade mark in the above suit. The cause of action for passing off arises outside the jurisdiction of this Court.
(2.) The plaintiff is a company having its registered office at Mumbai and carries on business, inter-alia, as builders and developers of residential and commercial properties. Defendant Nos. 1 and 2 are companies incorporated under the Companies Act, 1956, having its registered office at Chilakaluripet and Narasaraopet, Andhra Pradesh. The plaintiff claim to be the proprietor of registered trade mark "KALPATARU" and has various entities under the Kalpataru Group like Kalpataru Power Transmission Limited, Kalpataru Land (Surat) Private Limited, Kalpataru Limited, Kalpataru Construction Private Limited, Kalpataru Estate Private Limited, Kalpataru Builders Private Limited etc. The defendant No. 1 is carrying on business of financial services in the name 'Sri Kalpataruvu Chits (India) Private Limited' and 'Sri Kalpataruvu Chits (Narasaraopet) Private Limited'. The defendants have also filed applications with the Trade Mark Registry for registration of the mark and the name "SRI KALPATARUVU (CHITS) INDIA PVT. LTD. both in class 36 in respect of "financial and monetary affairs which include conducting chit funds business" as stated in paragraph 24 of the plaint.
(3.) The plaintiff has filed this suit alleging : (a) that the impugned mark of the defendants is structurally, visually and phonetically identical/similar to the trade mark of the plaintiff; (b) the defendants are adopting an identical and similar trade mark with a view to cash in on the reputation and trade upon goodwill of the plaintiff's trade mark; and (c) the adoption of the impugned trade mark by the defendants is dishonest and in bad faith ab-initio and a man of average intelligence would be misled and/or likely to be misled by the similarity of the impugned mark into believing that the impugned services of the defendants are associated with or connected with the plaintiff and/or that there is some business relationship between the plaintiff and the defendants and/or that the plaintiff has set up or is associated with the business of the defendants, etc.