Kheshtrapal Sharma v. Pancham Singh Varma

1. This is an application for revision of an order of the District Judge of Agra, confirming an order of the Subordinate Judge of Muttra directing that the plaint be returned to the plaintiff for presentation to the proper Court. The suit was one by the applicant for damages on account of alleged infringement by the defendant of the applicant's trade-mark. The applicant has for a considerable time been selling a medicine under the name of Sudha Sindhu which, we understand, means 'Ocean of nectar' in the course of his business at Muttra. He sells chiefly on V.P.P. orders received in response to advertisements which he puts in the papers. The respondent, who is a resident of Gaya, sells a medicine which he calls Asli Sudha Sindhu in the same way. The applicant's case is that his trade-mark which has been duly registered lias been infringed by the respondents. The alleged infringement is an advertisement of the respondent's medicine hi papers published in Muttra and in circulars and hand-bills distributed in the same place. The Courts below have held that the suit should have been brought in Gaya. They have treated it as a question of convenience rather than as a question of law. But if the applicant can show that the cause of action arose wholly or in part within the limits of the jurisdiction of the Subordinate Judge of Muttra, he is entitled to maintain his suit in Muttra. The question is whether the publication of the advertise merit by the respondent of his medicine, Asli Fludha Sindhu, in papers, hand-bills and circulars published in Muttra is an infringement of the applicant's trade-mark. For the purpose of this application we must, of course, assume that the applicant is entitled to the trade-mark which he claims and that the respondent's advertisement is calculated to induce people to believe that they will get from him the applicant's evidence. No authority has been produced in support of the argument that such an advertisement cannot^be an infringement of the trade-mark. On the other hand several English cases have been cited which show that it has been held for some years past that a trade-mark may be infringed by means of an advertisement. We think it is sufficient to refer to decisions in Jay v. Ladler (1888) 40 Ch. D. 649 : 60 L.T. 27 : 37 W.R. 505; Bourne v. Swan and Edgar Limited (1903) 1 Ch. 211 : 72 L.J. Ch. 168 : 51 W.R. 213 : 87 L.T. 589 : 19 T.L.R. 59 : 20 R.P.C. 105 and to the injunction which was issued by the House of Lords in the case of Reddaway v. Banham (1896) A.C. 199 : 65 L.J.Q.B. 381 : 74 L.T. 289 : 44 W.R. 638. On the authorities we must hold that if the facts are as alleged by the applicant, his trade-mark has been infringed within the jurisdiction of the Subordinate Judge of Muttra. We, therefore, nllow this application, sot aside the orders of the Courts below and direct that the record be returned to the Court of first instance and the suit restored to the pending file to be disposed of according to law. Costs here and hereto will be costs in the cause.