JUDGMENT
B.N. Kirpal, J.
1. The plaintiff has filed a suit claiming various reliefs on the ground that it is the registered proprietor of a trade Mark No. 261163 as of 8th December, 1969 in Class 25 in respect of soles and soling for shoes and chappels made of microcellular rubber sheets. The trade mark which has been registered is NIREX! The contention of the plaintiff is that the defendants have started manufacturing and selling since 1982 similar chappels bearing mark 'MIRES'. It is alleged in the plaint that the use of mark 'MIREX' infringes the plaintiff's right under the Trade Marks Act. It is also alleged that the plaintiff has a vested right in the artistic work of NIREX and the defendants should be injuncted from using the said mark 'MIREX'.
2. Apart from claiming the relief of permanent injunction for the alleged infringement of the trade mark and the copyright of the plaintiff the plaintiff has also claimed the relief of relation of account and for destruction of the goods, labels, dies, blocks etc. bearing the impugned mark.
3. Alongwith the suit the plaintiff has also filed an application under Order 39 Rules 1 and 2 claiming relief of interim injunction. By order dated 5th September, 1983 the defendants, their servants, agents and representatives were restrained from manufacturing, selling or dealing in rubber sheet for soles of footwears of all kinds and other allied goods under the mark and label MIREX.
4. In the written statement and the reply filed by the defendants a number of preliminary objection have been taken. While it has not been disputed that the plaintiff has a registered trade mark, the contention of the defendants is that the said mark has been registered in Class 25 of Schedule 4 and not in Class 17 of the said Schedule. It is also stated that defendants No. 2 also applied to the Registrar for registration of their trade mark MIREX in Class 17. Certain preliminary objection have also been raised. I will deal with the relevant ones presently, because they have been strenuously urged at the time of arguments.
5. At the outset it is contended by the learned counsel for the defendants that court has no territorial jurisdiction to try the suit. His submission is that no goods manufactured by the defendants are sold in Delhi and the defendants do not reside in Delhi nor do they carry on business in Delhi. The learned counsel submits that simply because an averment is made in the plaint that the defendants are selling goods in Delhi is not enough to the plaintiff to file the present suit in Delhi.
6. Learned counsel for the plaintiff, however, submits that the defendants have applied for registration of their mark in Delhi. While relying upon M/s. Jawahar Engineering Company and other, Vs. M/s. Jawahar Engineers Pvt. Ltd. 1983 P.T.C. 207, he submits that because application for registration is made in Delhi, therefore, this court has jurisdiction to try this suit. There is, however, some controversy between the parties as regards the application which has been filed. Whereas the counsel for the plaintiff contends that in the application for registration the defendants have not sought to restrict the use of the mark which may be allotted to them,-the counsel for the defendants, however, states in the application which has been filed for registration it has been categorically State of Punjab alone. In other words, according to the learned counsel for the defendants an all-India registration is not sought.
7. It is not necessary to get into this controversy because in my opinion the provisions of Section 62 of the Copyright Act would clearly apply. The plaintiff is claiming a relief on infringement of the copyright. It is alleged that the word 'NIREX' is a contrived word. The said word means nothing and according to the learned counsel it is an artistic work. Section 62(2) of the Copyright Act states that a suit in respect of the infringement of the copyright may be instituted in a court within the local limits of whose jurisdictions, the person instituting the suit of other proceedings, actually and voluntarily resides of carries on business of personally works for gain. It is not disputed that the plaintiff carry on business in Delhi. Therefore, in my opinion, this court would have jurisdiction to try the present suit by virtue of the provisions of section 62(2) of the Act. I may at this stage also observe that in the plaint it has been categorically stated that the defendants are selling the infringed goods in Delhi and therefore, this court has jurisdiction to try this suit. It is true that there is no document which has been filed support of his submission but that is a matter which will be gone into at the time of trial of the suit.
8. It was then contended by the learned counsel for the defendants that this court has no pecuniary jurisdiction to try this suit. In this connection in was contended that for purposes of jurisdiction, the relief claimed for the permanent injunction restraining infringement of trade mark has only been valued at Rs. 150/- to destruction of goods etc. Rs. 150/-, for an order for permanent injunction regarding passing off at the same amount, and for an order of permanent injunction restraining infringement of copyright at the same amount. The relief for rendition of account has been valued at Rs. 1 lakh for purpose of jurisdiction. While relying upon M/s. Globe Super Parts Vs. Domestic Appliances and another 1981 P.T.C. 78, it was contended by the learned counsel for the defendants the court has no jurisdiction to try the suit. The said decision, however, was distinguished by Avadh Behari J. in Dabur (S.K. Burman) Vs. Vikas Pharma 1983 P.T.C. 169. The reliefs claimed there were similar to those claimed in the present plaint. A.B. Rohatago, J. aggregated the value of the reliefs for purpose of jurisdiction when came to figure of Rs. 1,00,600/-. In that case also the relief for rendition of accounts for the purposes of jurisdiction was valued at Rs. 1 lakh while dealing with the decision of D.K. Kapur, J, the learned Judge observed as follows:
Mr. Dalmia has referred me to two decision of D.K. Kapur, J. One is Messers Pearl Hosiery Mills vs. Union of India, AIR 1979 Delhi 64 and the other is Messers Globe Super Parts, Faridabad Vs. Domestic Appliances and others, 1981 Patent and Trade Mark cases, 78. In my opinion those cases were entirely different. There the plaintiff has valued the suit for the purpose of court fee as well as for jurisdiction at Rs. 200/-, he is bound to file the suit in a court which has jurisdiction to try such a suit. He therefore, returned the plaint for presentation to appropriate court. In the present case the plaintiff has valued the reliefs for rendition of account at Rs. 1 lac. Therefore, this court has jurisdiction to try the suit.
9. I am in respectful agreement with the observation of A.B. Rohtagi, J. in Dabur's case. Following that decision the only conclusion which can be arrived at is that this court has pecuniary jurisdiction to try this suit.
10. It was lastly contended that the trade mark of the plaintiff has been registered in Class 25 whereas it should have been registered under Class 17. I am unable to agree with his submission. Class 25 of Schedule 4 reads as follows:
Clothing including boots, shoes and slippers
11. On the other hand Class 17, under which class the defendants have applied, of the said Schedule 4 reads as follows:
Gutta-percha, India rubber, balata and substitutes, articles made from these substance and not included in order classes; materials for packing, stopping or insulating; asbestos, mica and their product; hose-pipe (non-metallic); plastic in the form of sheet, blocks, rods and tubes being for use in manufactures.
12. The goods in question are made from synthetic material and are not made from India rubber. Prima facie, the goods have been correctly registered under Class 25. Moreover under Section 8(2) of the Trade and Merchandise Mark Act, the decision of the Registrar with regard to the question as to under which class any goods fall, is final. It is Registrar who has granted the registration to the plaintiff under Class 25 and prima facie no fault can be found with this.
13. No other contention has been raised by the learned counsel for the defendants.
14. I am satisfied that this is a clear case where the defendants have tried to copy the registered mark of the plaintiff. The mark 'MIREX' which is now being used by the defendants is phonetically and visibly similar to the mark of the plaintiff. The difference is only in the first letter, namely the defendants have substituted the letter 'M' for 'N'. The plaintiff has admittedly been carrying on the manufacture and sale of goods with the said mark 'NIREX' long prior to the defendants entering the filed. I have, therefore, no hesitation in coming to the conclusion that the plaintiff is entitled to have the interim order confirmed. I accordingly confirm the interim order dated 5th September, 1983 till the disposal of the suit. This application stands disposed of. No. costs.
I.A. 4659/83
In view of the passed in I.A. 3567/83 this application is dismissed. No costs.