JUDGMENT - REBELLO F.I., J.:-The plaintiffs have filed the present suit against the defendant for infringement of their trade mark and also action in passing off. The case of the plaintiffs is that the 1st plaintiff No. 1 is an international company having several affiliates, associates and subsidiary companies. The 1st plaintiff has several registered trade marks in its name all over the world including India. The mark "KODAK" a coined word is a distinctive trade mark and one of the most well recognised trade mark in the world. The 1st plaintiff is registered proprietor of the said mark as also the trade mark known as "KODAK" (device). All these are registered under the Fourth Schedule to the Trade and Merchandise Marks Rules, 1959 framed under the Trade Merchandise Marks Act, 1958. The registration of the said trade marks are valid and subsisting. The 2nd plaintiff is a subsidiary of the 1st plaintiff. At the time of filing of the suit 74% of the share holding was held by the UK subsidiary and as of date the 2nd plaintiff has share holding of 96%. It is then averred that the plaintiff No. 2 imports and markets the photographic films manufactured by Kodak Limited U.K. (a subsidiary of the 1st plaintiff in U.K.). These imported films bear the legend "not for re-sale outside India". The averment of plaintiff No. 1 is that the trade marks are applied the Kodak India Limited upon the said films as a licensee of the 1st plaintiff. It is the case of the plaintiffs that the defendant, a partnership firm appears to be in the film trading business and is also in the business of purchasing photographic film. The defendant, it is contended purchases film bearing the impugned trade marks with the legend "Not for resale outside India" and exports the said films to Hong Kong and/or China. The said export by defendant to Hong Kong and/or China is without the consent of the plaintiffs. It is alleged that the defendant exported Konica Films (in reality Kodak Profoto Films). It is then set out that the notice on the packs, constitutes a positive prohibition upon dealing in the goods under the said trade marks, outside India that runs with the goods. It is alleged that the defendant exported Konica Films (in reality Kodak Profoto Films). It is then set out that the notice on the packs, constitutes a positive prohibition upon dealing in the goods under the said trade marks, outside India that runs with the goods. The plaintiffs have not consented to the use of its trade marks in Hong Kong and/or China, and the plaintiffs have, by a clear notice made its absence of consent apparent to any purchaser of "Kodak Professional Profoto" films in India. The defendant's act of exporting "Kodak Professional Profoto: films for re-sale outside India is actionable in India as the use of the said trade mark by the defendant amounts to use of the trade mark in India. The defendant is using the trade mark in the course of trade, in relation to the said goods in such a manner as to render the use of the marks likely to be taken as being used as a trade mark. Reference is made to Exhibit "G" which is letter dated 15th May, 2001 from Eastman Kodak Company, U.K. By the said letter the plaintiff No. 1 has confirmed the understanding under which Eastman Kodak Company through its British Subsidiary Kodak Ltd., sells to Kodak India certain films known as Kodak Professional Profoto film. It is then set out that it has come to their knowledge that the films are specifically for the purpose of sale and distribution in India and for no other purpose and for this reason the cartons are clearly marked "Not for resale outside India". The attention of the plaintiff was drawn to certain persons exporting such film out of India to Hong Kong and that in doing so, the true identity of such film has been hidden or misrepresented as that of another manufacturer. It is also set out that quantities of such film have been found on the mainland of China in cartons with counterfeit Kodak's Chinese language boxes for Kodak Gold film. It is then set out that this activity is illegal and has caused the plaintiff No. 1 substantial damage and injured its reputation of its products in commerce. The plaintiff No. 2 was, therefore, requested to take all necessary steps to see that those films are sold only in India and that they are not improperly represented as Kodak Gold film through counterfeit packaging. The plaintiff No. 2 was, therefore, requested to take all necessary steps to see that those films are sold only in India and that they are not improperly represented as Kodak Gold film through counterfeit packaging. It is then contended that subsequent to this the plaintiff No. 2 filed complaint with the Customs Authorities. Suffice it to say that pursuant to the complaints and subsequent order passed by this Court, Receiver came to be appointed by order dated 17th May, 2001. It has come on record that some cartons containing the plaintiff's mark were packed in cartons containing the words "Konica (Superia 200)". It may not be necessary to deal with this aspect of the matter considering the subsequent orders in respect of the goods seized by the Custom Authorities and the reliefs which the plaintiffs are now seeking. The plaintiffs, it is pleaded, being the registered proprietor of the trade make have an absolute right to impose any restriction which they wish to on the said film. Reliance is placed on various judgments which will be adverted to in the course of discussion. In answer to the reply filed by the defendants it is set out that the defendant is misrepresenting the true identity of the film as that of another manufacturer to the consumers in Hong Kong and/or China and that the action of the defendant amounts to actionable wrong. It is denied that the defendant is merely exporting the films to Hong Kong or that they are not aware of how the said films are further sold in Hong Kong and/or China and that the defendant is not concerned after their own sale and that the acts done in Hong Kong do not entitle the plaintiffs to file the suit in India. 2. In answer to the plaintiffs case the defendant has filed an affidavit in reply through Mr. Moti Bhatia, partner. It is pleaded as follows. That the suit filed by the plaintiffs does not disclose any cause of action. It is false, frivolous and mala fide and without any merits and no cause of action has arisen in favour of the plaintiffs. It is further averred that there is no infringement of the plaintiffs trade mark nor any passing off as alleged at all, even if the allegations in the plaint are taken to be correct, which are denied. It is false, frivolous and mala fide and without any merits and no cause of action has arisen in favour of the plaintiffs. It is further averred that there is no infringement of the plaintiffs trade mark nor any passing off as alleged at all, even if the allegations in the plaint are taken to be correct, which are denied. It is then set out that defendants purchase colour films from authorised dealers of the plaintiffs for the purpose of export to Hong Kong and other places. The films purchased in the ordinary and regular courses of business are all manufactured by the plaintiffs/plaintiffs authorised licensees, to which the Trade Marks have been authorisedly applied by the manufacturers themselves. The purchases by the defendants are all valid and lawful of the goods already bearing the relevant trade marks lawfully applied. The defendant, it is contended, do not apply trade marks to the goods at all. The defendants purchase goods already properly trade marked and lawfully sell them. It is, therefore, submitted that there is no infringement or passing off by the defendants. How they package the films for export is then set out. For protection of the goods from damage the defendants place them in larger boxes specially made for export for the defendants. After packing, the Rolls are lawfully exported and there is no violation of any law by the defendants. The order of the Court Receiver and subsequent act of taking possession and panchnama is then dealt with and explained. It is set out that a carton bearing No. 16/17 was opened and it was found that "Kodak: professional profoto rolls were kept under the cover of Konica. The manner of packing is then set out and it is pointed out that the panchanama does not record the correct facts. The carton bearing No. 16/17 contained 3 cartons of Kodak Profoto films each containing 300 such rolls. The export documents, do not mention "Konica" films at all and they only state "Kodak films". Dealing with the averment of the plaintiff that the importer in Hong Kong are packing the same in other boxes before resale it is contended that they are in no way connected with the same nor are the defendants responsible for the same. The defendants have not committed any infringement. It is then set out that the defendants do not export to China. The defendants have not committed any infringement. It is then set out that the defendants do not export to China. It is also set out that the defendants act of export of Kodak Professional Profoto film for resale outside India is not actionable in India as alleged. The condition "Not for resale outside India" is only applicable to those goods made in U.K. which are to be sold exclusively in India and not to any other place outside India, but once the goods have reached India that condition is fulfilled and exhausted and it does not apply any further to any further sales. It is once again set out that the Kodak films which were found under the cover box of Konica films were so kept, due to the sizes of Kodak film rolls which came in packs of 300 each hence making a space of 100 rolls pack in a 1000 rolls box. There is no passing off or misrepresentation. It is then again set out that the defendants are not aware how the films are further sold in Hong Kong as they are not involved or concerned after their own sale. Dealing with the contention that the importer in Hong Kong is allegedly selling the profoto films in China in a different pack of superior film of the plaintiffs namely kodak Gold, the defendants deny any knowledge of the allegations and hence put the plaintiffs to the strict proof. It is, therefore, pleaded that no case has been made out and consequently no relief be granted in favour of the plaintiff. 3. At the hearing of the Motion on behalf of the plaintiffs it is contended that the defendants in exporting the films to Hong Kong and/or China bearing the legend "Not for resale outside India" have violated the conditions imposed by the legend. The aforesaid acts in exporting the impugned film to Hong Kong and/or China are done without the consent of the plaintiffs. It is then submitted that the notice on the packs, constitutes a positive prohibition upon dealing in the goods under the said trade marks outside India that runs with the goods. The aforesaid acts in exporting the impugned film to Hong Kong and/or China are done without the consent of the plaintiffs. It is then submitted that the notice on the packs, constitutes a positive prohibition upon dealing in the goods under the said trade marks outside India that runs with the goods. The plaintiffs, it is contended, have not consented to the use of its trade marks in Hong Kong and/or China and the plaintiffs have, by a clear notice made its absence of consent apparent to any purchaser of Kodak Professional Profoto film in India. The action of the defendants in exporting kodak Professional Profoto film for resale outside India is actionable in India, as the use of the said trade marks by the defendant amounts to use of the trade mark in India. The defendant is using the trade marks in the course of trade, in relation to the said goods in such a manner as to render the use of the marks likely to be taken as being used as a trade mark. Reliance has been placed on the letter dated 15th May, 2001 Exhibit "G" to the plaint wherein it is recorded that the understanding which the plaintiff No. 1 has with its British subsidiary Kodak Limited to sell to plaintiff No. 2 the films known as Kodak Professional Profoto film. It is then contended that the plaintiffs as the registered proprietor of the trade marks have the absolute right to impose any restrictions which they wish to on the films. It is, therefore, submitted that the plaintiffs would be entitled to reliefs in terms of prayer Clauses (a) and (b). Reliance has been placed on the judgments in the case of (The Incandescent Gas Light Company Ltd. v. Cantelo)1, XII R.P.C. 262 for the contention that an action for infringement can lie when there are restrictive conditions as to the user. Reliance is then placed on the judgment of (Castrol Limited v. Automotive Oil Supplies Limited)2, 1983 R.P.C. 315 to contend that even in case of use of identical marks in two countries by licencee of the same company, if there was an agreement that marks were not to be used outside the area of the agreement the defendant would not be protected, and injunction will be granted. Reliance is also placed thereon in the judgment of (Colgate-Palmolive Limited and another v. Markwell Finance Limited and another)3, 1989 R.P.C. 497 for the proposition that when the registered proprietor of a registered mark permits a subsidiary to use the mark and imposes a condition limiting the export of the goods bearing the mark, it would be open to the Court to grant injunction both on the ground of passing off and for infringement and considering, in that case, the cause of action was in U.K., the provisions of section 4(3)(a) of the UK Trade Marks Act, 1938 would be no defence. Section 4(3)(a) it is submitted is similar to the provisions of section 30(1)(b) of The Trade and Merchandise Marks Act, 1958. 4. On the other hand on behalf of the defendants it is submitted that there is no material on record by way of pleadings disclosing that the plaintiffs anywhere have stated that they do not sell or do not wish to sell their rolls with the trade mark Kodak Professional Profoto film outside India. On the contrary it is submitted that in paragraphs 3 and 4 of the plaint it is averred that Kodak colour Profoto is also a registered mark of plaintiff No. 1 in over 100 countries and sold world wide including Hong Kong and China. It is also submitted that the plaintiffs have not contended that the quality of goods sold in U.K. or in India is different from the quality of the goods sold in Hong Kong or China or anywhere else. It is also submitted that there is no allegation that any of the plaintiffs goods bearing a particular mark are of different quality in different countries or that customers differentiate in the quality of the goods in differentiate countries. It is then submitted that the legend only purports to prohibit resale and not the use of the 1st plaintiffs mark outside India. The averments by the plaintiffs themselves show that the 1st plaintiffs goods bearing the same mark are sold in Hong Kong and China. The 1st plaintiffs mark is, therefore, not prohibited by the 1st plaintiff in Hong Kong and China. It is then submitted that the legend "not for resale outside India" is not a valid and binding stipulation and the defendants have not infringed and/or passed off any trade mark or goods of the plaintiffs. The 1st plaintiffs mark is, therefore, not prohibited by the 1st plaintiff in Hong Kong and China. It is then submitted that the legend "not for resale outside India" is not a valid and binding stipulation and the defendants have not infringed and/or passed off any trade mark or goods of the plaintiffs. It is submitted that assuming without admitting that the legend "not for resale outside India" is valid and a binding stipulation, even then the defendants have not done anything which amounts to infringement or passing off. The defendant it is submitted purchase the rolls manufactured by the plaintiffs from the whole sale market and export the same. The defendants do not resell the goods outside India i.e. Hong Kong or China. What the importer in Hong Kong or China does with the said rolls, the defendants are not aware of and/or concerned with. If the importer is using the said rolls himself there would in any case be no violation of the said legend. If the importer is selling the said rolls, the cause of action, if any, would arise against that party and not against the defendants and would arise in the jurisdiction where the said rolls are sold. It is, therefore, submitted that no part of the cause of action has arisen within the jurisdiction of this Court in respect of legend "not for resale outside India". It is further submitted that the legend/condition is void, bad in law and not binding as it is in restraint of trade. The motion, therefore, it is contended, should be dismissed on the ground that the defendants are not guilty of passing off or infringement by exporting Kodak Professional Profoto film to Hong Kong and secondly assuming that the importer in Hong Kong violates the words in the legend the cause of action for the plaintiffs would be where the violation has taken place i.e. in Hong Kong as no part of the cause of action would arise within the jurisdiction of this Court. Reliance is placed for that purpose in the judgment of Chancellery Division High Court of Justice England in (Champagne Heidieck Et Cie Monopole Societe Anonyme v. Buxton)4, reported in 1940(47) R.P.C 28 to contend that when the goods having the same mark were sold with restrictions then the provisions of section 3 of the U.K. Trade Marks Act, 1875 was not to make a registered Trade Mark a badge of control carrying with it the right in the owner to full control over his goods, into whosesoever hands they might be, except in so far as he might expressly or by implication have released his right of control. Reliance is also placed in the judgment in the case of (Revlon Inc and others v. Cripps and Lee Ltd. and others)5, reported in 1980 F.S.R. 85 to contend that the function of a trade mark is to indicate the true origin of goods to which it is applied and on the facts of that case the mark Revlon Flex had been exploited as part of a world-wide exercise and had been used to indicate that the goods to which it was applied originated from the Revlon group, but not from any particular part of the group and there was no misrepresentation as to the commercial class or quality that would not constitute passing off nor would there be any infringement. Reliance is also placed in the judgment of the Apex Court in the case of (Delhi Development Authority v. Skipper Construction Company (P) Ltd. another)6, A.I.R. 1996 S.C. 2005 to contend that considering the issues involved the corporate veil shall be lifted. Learned Counsel also sought to explain as to what according to him is the correct ratio in the case of Colgate-Palmolive Limited. It is, therefore, submitted that the injunction granted ought to be vacated. As to the allegation that the defendants were exporting plaintiffs products Kodak Profoto films in Konica boxes, it is explained that certain cartoons bearing No. 16/17 was opened and it was found that Kodak professional profoto was kept under the cover of Konica. It is pointed out that Konica carton was available with the defendants since they also export Konica Rolls. It is contended that the defendants do not pack Konica rolls in Kodak carton. It is pointed out that Konica carton was available with the defendants since they also export Konica Rolls. It is contended that the defendants do not pack Konica rolls in Kodak carton. The contention of the plaintiff is, therefore, denied and it is explained that the correct position is as given in paragraphs 10 and 11 by the defendants in sur rejoinder dated 25th August, 2003 to the rejoinder of the plaintiffs. It is contended that the case of the defendants is covered by section 30(1)(b) of the Trade and Merchandise Marks Act, 1958. 5. From the above for the purpose of deciding whether a strong prima facie case has been made out the following questions will have to be answered : (1) Does a film imported in India with a legend on the carton "not for resale outside India" sold in India and exported to Hong Kong, give rise to an action in infringement or an action in passing off or both of the plaintiffs work? (2) If the importer in Hong Kong has in breach of the legend not for resale outside India sold the goods in Hong Kong or China then can the plaintiffs, in case of such a breach maintain an action before this Court for such alleged breach or whether in such a case the action would be maintainable in the country or countries where the breach has arisen? 6. To answer the issues some undisputed facts as they emerge from the pleadings as they now stand can be set out. In paragraph 3 of the plaint the plaintiffs have pleaded that the trade mark "Kodak", "Kodacolor" "Profoto" are registered in the name of the 1st plaintiff in over 100 countries around the world including India. The word 'Kodak" has now become a household name in respect of cameras, films and numerous innovative products are manufactured by plaintiff No. 1. The products manufactured by the plaintiffs by itself and or by its subsidiary companies. The products are sold in several countries such as United States of America, Canada, United Kingdom, China, Hong Kong. etc. It is, therefore clear that the said marks are used not only in India, but in Hong Kong as also in China. There is no material on record to show that the quality of the goods manufactured or marketed is different from country to country. etc. It is, therefore clear that the said marks are used not only in India, but in Hong Kong as also in China. There is no material on record to show that the quality of the goods manufactured or marketed is different from country to country. It is also not the plaintiffs case that the "ProFoto" goods made in U.K. and imported into India from U.K. are inferior in quality to those made elsewhere or marketed in Hong Kong or China. With this background we may consider some provisions for the purpose of deciding the controversy. Section 2(1)(v) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) defines Trade Mark as follows : "2(v) : Trade Mark : means- (i) In relation to Chapter x (other than section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some persons having the right as proprietor to use the mark; and (ii) In relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some persons having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identify of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII." A perusal, therefore, of the section would show that a trade mark is only a means of indicating the relation in the course of trade between the goods and the persons having the right as proprietor to use the mark. A trade mark is not a badge of control carrying with it the right in the owner to full control over his goods, into whosoever hand the goods might come. A trade mark is not a badge of control carrying with it the right in the owner to full control over his goods, into whosoever hand the goods might come. We then have section 28 of the Act which sets out that by registering a trade mark the proprietor of the trade mark shall have the exclusive right to use the trade mark in relation to the goods in respect of which the trade mark is registered and to gain relief in respect of the infringement of the trade mark in the manner provided by the Act. The language and its interpretation have been discussed in Champagne Heidieck Et Cie Monopole Societe Anonyme v. Buxton, reported in 1940(47) R.P.C. 28. In that case the registered proprietor of certain Trade Marks registered in respect of Champagne commenced an action for infringement of the Trade Mark and for passing off. It was the plaintiffs contention that they prepared Champagne differently for different countries according to the taste of the people of the countries and that the Trade Mark would be indicative of the wine prepared for sale in British Isles. They contended that the wine sold by the defendant was the plaintiffs own wine prepared for the continental market only, and would cause deception if sold in the British Isles, and that the defendant knew that it was sold by the plaintiffs subject to restrictions. The label on that wine bore the word "Brut". The defendant denied that it would amount to deception or is calculated to deceive and alleged that, if it did, it would be due to the plaintiffs own label. The defendant also denied knowledge of the restrictions on the sale of the wine. There was a label on the product which read "Reserved for England". The defendant denied that it would amount to deception or is calculated to deceive and alleged that, if it did, it would be due to the plaintiffs own label. The defendant also denied knowledge of the restrictions on the sale of the wine. There was a label on the product which read "Reserved for England". The Court held that the effect of section 3 of the U.K. Trade Marks Act, 1875 was no to make a registered Trade Mark a badge of control carrying with it the right in the owner to full control over his goods, into whosesoever hands they might be, except in so far as he might expressly or by implication have released his right of control, nor did section 39 of the Trade Mark Act, 1905 which superseded the earlier Acts, have that effect and that the exclusive right to use a mark conferred on the registered proprietor by section 39 of the Trade Marks Act, 1905 is the right to use the mark as a trade mark i.e. as indicating that the goods upon which it is placed are his goods and to exclude others from selling under the mark wares which are not his. We then come to section 29 of the Act which sets out as what would constitute infringement of the trade marks. The said section may now be reproduced which reads as under : "29. Infringement of trade marks.-(1) A registered trade mark is infringed by a person who not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of trade a mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark." The next relevant section would be section 30 of the Act. The relevant portion is as under : "30. Acts not constituting infringement.-(1) Notwithstanding anything contained in this Act, the following acts do no constitute an infringement of the right to the use of a registered trade mark-- (a) ............... The relevant portion is as under : "30. Acts not constituting infringement.-(1) Notwithstanding anything contained in this Act, the following acts do no constitute an infringement of the right to the use of a registered trade mark-- (a) ............... (b) The use by a person of a trade mark in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or a bulk of which they form part, the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark; (c) ............... (d) ............... (2) Where the goods bearing a registered trade mark are lawfully acquired by a person, the sale of or other dealings in those goods by that person or by a person claiming under or through him is not an infringement of the trade mark by reason only of the trade mark, having been assigned by the registered proprietor to some other person after the acquisition of those goods." A perusal of sub-clause (b) of sub-section (1) would show that the said sub-clause is in two parts and each is independent of the other. The first sets out that the use by a person of a trade mark in relation to goods connected in the course of trade with the proprietor or a registered user of a trade mark if, as to those goods or bulk of which they form part, the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, does not constitute infringement. The second part of sub-clause (b) independently sets out that an act would not constitute an infringement of the right to use of the registered trade mark if at any time there has been an express or implied consent to the use of the said trade mark by its proprietor. 7. With the above we will first consider whether the plaintiffs have been able to establish that there is an infringement by the defendant of the plaintiffs mark. 7. With the above we will first consider whether the plaintiffs have been able to establish that there is an infringement by the defendant of the plaintiffs mark. The argument as noted earlier is that the plaintiffs as the registered proprietors have the absolute right to impose any restrictions which they wish to on the said films and in that connection relied on the principles set out in the case of The Incandescent Gas Light Company Limited v. Cantelo, reported in 1895 R.P.C 262. Reference is made to the following passage : "Of course, if he knows of restrictions and they are brought to his mind at the time of the sale, he is bound by them. He is bound by them on this principle. The patentee has the sole right of using and selling the articles, and he may prevent anybody from dealing with them at all in as much as he has the right to prevent people from using them, or dealing in them at all, he has the right to do the lesser thing that is to say, to impose his own conditions. It does not matter what they are if he says at the time when the purchaser proposes to buy, or the person to take a licence, "Mind, I only give you this licence on this condition," and the purchaser is free to take it or leave it as he likes, if he takes it, he must be bound by the condition. It seems to be common sense, and not to depend upon any patent law, or any other particular law." From this what emerges is that the proprietor of a patent has the exclusive right to deal with his patent in any manner as he likes. The patentee has the right to impose restrictions on his product and the purchasers would be bound by such condition, subject to having notice of the said condition, even if the restriction is unreasonable or absurd. The patentee has the right to impose restrictions on his product and the purchasers would be bound by such condition, subject to having notice of the said condition, even if the restriction is unreasonable or absurd. The contention of the plaintiff is by apology that it must be also be applied to the rights of the proprietor of a trade mark who may also impose restrictions on the sale of his products bearing the same trade mark as it is he the registered proprietor who under the provisions of the Act has the exclusive right to use the trade mark upon or in relation to the goods in respect of which it is registered. It is, therefore, clear that what the plaintiffs want this Court to do is to apply the principle in the matter of patent also to an action in infringement or passing off a trade mark. Reliance was then placed in support of the proposition in the matter of Castrol Limited v. Automotive Oil Supplies Limited, 1983 R.P.C. 315 on the facts of that case it was held that the export of goods without express or implied consent as required under section 4(3)(a) of the English Act would amount to an infringement of the trade mark. However, in the very same judgment the argument made on behalf of Castrol Limited namely that the notice upon the container constituted a positive prohibition, upon dealing in the goods under the trade marks outside Canada, that run with the goods was dealt with. Reliance was placed in the judgment in (National Phonograph v. Menck)7, 1911(28) R.P.C. 229. That was a case of patented articles. What has been argued over here in the matter of application of the principles applicable to patents to "trade mark". It was also sought to be argued, namely, that it would apply to goods to which trade mark had been affixed. The learned Judge held that he was not prepared to make a finding upon that interesting submission, since it did not seem to him that he was concerned in that case with the question of whether a positive prohibition can run with the goods and what the Court was considering was whether the proprietor of the trade mark has expressly or impliedly consented to the impugned use of the trade mark. Can it be said on the facts of the present case that the defendants have infringed the plaintiffs mark. From the facts which have already come on record it is clear that the defendants have not infringed any of the plaintiffs trade mark. The defendants have lawfully purchased goods already validly marked by the plaintiffs and thereafter exported them in the same conditions. The defendants, therefore, have satisfied the first part of sub-clause (b) of sub-section (1) atleast in so far as the cause pleaded within the jurisdiction of this Court and consequently there arises no question of any infringement. 8. The next question is whether the defendants have been able to establish that there has been express and implied consent to the use of the trade mark by the proprietor. The plaintiff No. 1 is a registered owner of the mark and has various subsidiaries including plaintiff No. 2. The mark, as seen from the pleadings, if used apart from India also in U.K. China, Hong Kong, etc. The mark of the plaintiff, therefore, has been exploited as a part of a worldwide exercise and has been used to indicate that the goods to which it is applied originated from the plaintiffs group and not from any particular part of the group. In fact on the material as it appears the mark for all purposes have the effect of a house mark of the whole group. The plaintiff No. 1 has not produced any agreement with the subsidiary, Kodak (U.K). The only document is Exh. G, which is a letter by plaintiff No. 1 to plaintiff No. 2. The plaintiff No. 1 it must be held has consented to and concurred to their mark being used as group mark and by every other group company. Therefore, the plaintiff No. 1 and all the group companies of plaintiff No. 1 had impliedly consented to the application of the mark with every other group company and also consented to the goods bearing the mark being sold further. The defendants have relied on the judgment in the case of Revlon Inc and others v. Cripps and Lee Ltd. and others, 1980 F.S.R. 85. In that case, Revlon Inc and others had brought an action against the defendants therein inter alia alleging passing off and infringement. The defendants have relied on the judgment in the case of Revlon Inc and others v. Cripps and Lee Ltd. and others, 1980 F.S.R. 85. In that case, Revlon Inc and others had brought an action against the defendants therein inter alia alleging passing off and infringement. Revlon Inc and its subsidiaries were manufacturing and marketing products in the United Kingdom as well as in the United States. Revlon Inc was a Delaware company and was engaged in the manufacturing and sale of Revlon products in the United States. The products made in the United Kingdom were marketed by Revlon internationally, a subsidiary of Revlon Inc. The products in the United Kingdom were manufactured at the factory at Wales by Revlon Overseas a Venezuelan Company also a wholly owned subsidiary of Revlon Inc. Revlon Suisse S.A. a wholly owned subsidiary of Revlon International was the registered proprietor of the United Kingdom trade marks Revlon and Revlon Flex. Revlon Overseas was a registered user of the mark Revlon Flex. Revlon products were sold both in the United Kingdom as well as United States. Revlon Inc., introduced an additional medicated anti dandruff variety of Revlon Flex shampoo and conditioner in the United States market but the British Management of Revlon International decided not to add the new anti dandruff variety of the existing varieties of Revlon Flex shampoo. Revlon Inc thereafter decided to discontinue the sale of the anti dandruff products in the United States. It disposed of a large quantity of stocks to a New York charity on condition that they should not be sold and further stocks were sold cheaply to American wholesalers. Some of the defendants imported quantities of the American anti dandruff products and distributed them on the British market to others whereupon the plaintiffs filed proceedings against the defendants and contended that the sale of American Anti Dandruff Products constituted passing off of the goods of Revlon Inc as and for the goods of Revlon companies operating in Britain. It was also contended that the same amounted to passing off the anti dandruff products as and for the non-medicated products familiar to the British Public. It was also contended that the same amounted to passing off the anti dandruff products as and for the non-medicated products familiar to the British Public. It was contended that the sale of the products in the United Kingdom under mark Revlon Flex infringed their trade mark monopoly under section 4(1)(a) because American anti dandruff products were not connected in the course of trade with their registered proprietor Revlon Suisse S.A. or the registered user Revlon Overseas. Injunction sought for was refused holding that the plaintiff had not established that there was a serious question to be tried on the passing off issue. It was also held that the plaintiff had not succeeded in establishing any infringement of the trade marks. Appeal preferred also was dismissed. In Appeal separate judgment was delivered by Buckley and Bridge L., JJ. and Templeman L.J. In so far as infringement is concerned it was observed as under : "Per Buckley and Bridge L., JJ : (1) The "proprietor" whose consent was required by section 4(3)(a) of the Trade Marks Act, 1938 was the registered proprietor of the trade marks, Revlon Suisse S.A. (2) The function of a trade mark is to indicate the trade origin of goods to which it is applied. Dicta in (Aristoc Ltd. v. Rysta Ltd)8, 1904 A.C. 68 applied. (3) The mark REVLON FLEX had been exploited as part of a world wide exercise and had been used to indicate that the goods to which it was applied originated from the Revlon group, but not from any particular part of the group. The mark had become in effect the house mark of the whole group. (4) Although as a matter of policy Revlon Inc allowed the managers of its subsidiaries a measure of autonomy, it could at any moment impose its will upon any company in the group. In the circumstances, every company in the group must be taken to have concurred in and consented to the REVLON FLEX mark being used as a group mark. Accordingly, the American anti-dandruff products were connected in the course of trade with the proprietor Revlon Suisse and the registered user Revlon Overseas, and those companies had impliedly consented to the application of the mark to and the disposal of the goods by Revlon Inc in America. Accordingly, the American anti-dandruff products were connected in the course of trade with the proprietor Revlon Suisse and the registered user Revlon Overseas, and those companies had impliedly consented to the application of the mark to and the disposal of the goods by Revlon Inc in America. (5) Revlon Inc had put the purchasers of its products in the position of being able to export them to the United Kingdom or elsewhere without it being able to object. Accordingly, its subsidiaries could not object either because they had consented to Revlon Inc's sale of the products bearing the mark or because Revlon Inc had power to over-rule any objection by virtue of its control over them. (6) Per Buckely and Bridge L., JJ., Templeman L.J. dissenting. The mark had not been applied to the goods by the proprietor or the registered user. (7) Per Templeman L.J.: The application of the mark by Revlon Inc in the United States could for the purpose of section 4(3)(a) fairly be considered to be used by its subsidiary Revlon Suisse. (8) Per Buckley and Bridge L.JJ.: Whether the plaintiffs had a remedy against anyone in America for breach of the restrictions imposed on the charity was no concern of the Court. (9) No reasonably perspicacious member of the public would suppose that the American anti-dandruff bottles labelled as they were, contained the same product as the British Revlon Flex products labelled for normal, greasy of dry hair. (10) There was no evidence that the American anti-dandruff products were inferior in quality to the British goods. (11) Observed by Templeman L.J.: In any event, here could be no passing off when products manufactured, named, labelled and put into circulation by a Revlon Company were sold by the defendants without any alteration to the contents, name or label. (12) Buckley and Bridge L., JJ., held that the defendants had not infringed the plaintiffs trade marks not had there been any passing off. While Templeman L.JJ., held that the plaintiffs had not established a plausible cause of action in passing off or in trade marks infringement. The submission of the plaintiffs, however, is that the Revlon Inc (supra) did not deal with a case where it was expressly stated on the product that particular goods were not to be sold outside a particular territory. The submission of the plaintiffs, however, is that the Revlon Inc (supra) did not deal with a case where it was expressly stated on the product that particular goods were not to be sold outside a particular territory. The contention of the plaintiffs herein has been that the finding in the case of Revlon was that Revlon had put the purchasers of its products in the position of them being able to export those goods with the mark upon them to the United Kingdom without any possibility of Revlon objecting. The plaintiffs by putting the legend "not for resale outside India" had made every effort to make sure that their products were not exported. We may note here that there is a material and important distinction between a restriction on the use of a mark outside India and the sale of certain goods bearing that mark outside India. There never has been any restriction on the use of the mark "Profoto" outside India. The admission in the plaint is that the mark has been and is being used outside India. The plaintiffs have been unable to show as earlier set out that the goods marked "Profoto" is different in quality or otherwise in India and outside India. The legend only restricts the sale of certain goods which is different from user of the mark. It may also be noted that the legend "not for resale outside India" only prohibits the sale of products outside India and not export or sale from India. The defendants by exporting the same to Hong Kong are not reselling the same to Hong Kong. It is further clear from the judgment that the mark of the plaintiffs has been exploited as a part of a world wide exercise and has been used to indicate that the goods to which it is applied originated from the plaintiffs group and not from any particular part of the group. It must prima facie be held that every company in the group has consented and in any event must have been taken to have occurred in and consented to the said marks being used as a group mark and by every other group company. The plaintiff No. 1 and the group companies have impliedly consented to the application of the mark by every other group company and also consented to the goods bearing the mark being sold further. The plaintiff No. 1 and the group companies have impliedly consented to the application of the mark by every other group company and also consented to the goods bearing the mark being sold further. It is, therefore, clear from the material atleast on record that there has been implied consent and consequently also there would be no infringement. 9. We may deal with the Castrol case, which was relied upon by the plaintiffs to show that in case of the products manufactured in Canada and imported to England, an injunction had been granted. In that case there was a notice on the case with the following condition :--- "Manufactured in Canada under licence from Castrol Limited. No licence is granted or is to be implied by the sale or supply of this container or in relation to any...... trade mark..... or of owned by Castrol Limited anywhere in the world outside Canada..." From the facts in that case it will be clear that the licence agreement and the notice specifically prohibited the use of the trade mark anywhere outside Canada, which is not the case in the present case. In the Castrol case it is further established that the particular grade of oil was specially made for Canada keeping in mind the climatic conditions the oil made in Canada and that made in U.K. was different and if the Canadian Oil was used in U.K. it led to inefficient, performance causing damage. That is not the case in the present case. Thirdly, in the Castrol case it was proved by evidence that customers in U.K. identified only the U.K. product by the mark. There is presently no such evidence in the present case. The Castrol case is therefore, clearly distinguishable. 10. We may now deal with a further submission of the plaintiffs that the judgment in Champagne Heidsieck Et Cie Monopole Societe Anonyme v. Buxton and Revlon Inc case had been distinguished in the case of Colgate-Palmolive Limited and another v. Markwell Finance Limited another, 1989 R.P.C. 497. A reading of the said judgment would show that is not the position. The judgments both in Champagne and Revlon have been distinguished. From the facts in the Colgate Palmolive Limited case, the Court was dealing with a case in which inferior quality goods of the same manufacturer were being passed off and sold as superior quality goods. A reading of the said judgment would show that is not the position. The judgments both in Champagne and Revlon have been distinguished. From the facts in the Colgate Palmolive Limited case, the Court was dealing with a case in which inferior quality goods of the same manufacturer were being passed off and sold as superior quality goods. That is not the case in the present case. In the case of colgate the Court had come to a finding of fact based on evidence that the goods being made in and imported from Brazil and sold in the U.K. were in fact inferior. There is no such material in the present case to come to such a finding. In the case of Colgate the Court has distinguished Champagne and Revlon cases not on principle but on facts by stating that in those circumstances the Court noted the situation of inferior and superior quality of goods. Colgate case further holds, that if there is no difference in quality of goods the Champagne and Revlon cases will apply. In the case of Colgate the Court has stated that the United Kingdom Trade Marks Act is concerned with U.K. only. The following observation may be noted : "A trade mark registered in the United Kingdom has effect only within the territorial limits of the United Kingdom and the Isle of Man. Therefore, the use abroad only of a trade mark registered in the United Kingdom even use by a person resident in the United Kingdom does not constitute an infringement of the British Trade mark. But a trade mark is used in the United Kingdom if goods bearing the mark are sold here, although the proprietor has applied the trade mark and sold the goods abroad only." Reading the said passage on the facts of the present case it will be clear that trade mark registered in India has effect only within the territorial limits of India. Therefore, the use of the mark in Hong Kong even by a person resident in India, does not constitute the infringement of the Indian Trade Mark. At the highest if and at all the infringement would be in Hong Kong. Therefore, the use of the mark in Hong Kong even by a person resident in India, does not constitute the infringement of the Indian Trade Mark. At the highest if and at all the infringement would be in Hong Kong. From what has been discussed, it will, therefore be clear that the plaintiffs prima facie on the material on record have been clearly unable to show that there has been any infringement and consequently, have been unable to prove a strong prima facie case. 11. We may now deal with the action in passing off. It is not the case of the plaintiffs that the defendants are guilty of passing off on account of their acts in India. Their contention is that the defendants are guilty of passing off having exported the goods to Hong Kong when they are packed under a different carton, namely Kodak Gold. For that purpose we may apply some of the tests applied for passing off in the case of Colgate Palmolive (supra). The Court therein held that :-- "(1) There was no reason why a trader who placed the same mark on two distinct classes of article produced by him, a superior class and an inferior class, should not be entitled to bring a passing off action against a person who resold goods of the inferior class in circumstances which imported a false representation that the goods were of the superior class and thereby damaged the trader's reputation. (2) Since goodwill was a territorial concept and could not exist in the absence of a business within the territory in question, a manufacturer ought to be free to decide for himself with what goods he would make his reputation in that territory. The plaintiffs were not to blame for the confusion in the minds of the United Kingdom consumer. They had done their best to secure that the lower quality toothpaste was confined to Brazil and a limited number of export markets. That the defendants had succeeded in circumventing the plaintiffs' precautions did not mean that the plaintiffs were to be treated as the authors of their own misfortune. The position would have been different if two different qualities of toothpaste had been circulating in the United Kingdom market to the plaintiffs' knowledge. But that was not the case; no question of acquiescence arose. The position would have been different if two different qualities of toothpaste had been circulating in the United Kingdom market to the plaintiffs' knowledge. But that was not the case; no question of acquiescence arose. (3) It had been clearly established that a misrepresentation as to the character and quality of the Brazilian toothpastes had been and would be made by the defendants to potential consumers in the United Kingdom. It was no defence to show that the goods were originally produced and sold by a subsidiary of Colgate U.S." From consideration of the above tests and the material on record, it is clear that the plaintiffs have been unable to show that the mark could not be used in Hong Kong and that the goods imported into India and exported to Hong Kong were of inferior quality to the goods which are being sold in Hong Kong under the same mark. The reputation which the plaintiffs have is in respect of the goods brought into India which reputation cannot extend beyond the territories of India. There is, therefore, no misrepresentation as to the character and quality of the goods exported by the defendants. There is, therefore no passing off also. Here also, no strong prima facie case on that count. 12. It is also alleged by the plaintiffs that the defendants were packing Kodak films in Konica cartons and exporting them and thus were guilty of passing off. The report of the Court Receiver was relied upon. In the report of the Court Receiver it is stated that one carton bearing 16/17 of the consignment being opened it was found that Kodak Professional Profoto was kept under the cover of Konica (Superia 200 box) and thereafter repacked and resealed. The defendants have then given explanation. It is their contention that they were not present at the time of said report ad that the details of all the contents of the entire consignment have also not been recorded. It has only been recorded that a certain carton bearing No. 16/17 was opened and it was found that Kodak professional Profot rolls were kept under the cover of Konica. It is the case of the defendants that they have special boxes made for export which can carry 1000 rolls. It has only been recorded that a certain carton bearing No. 16/17 was opened and it was found that Kodak professional Profot rolls were kept under the cover of Konica. It is the case of the defendants that they have special boxes made for export which can carry 1000 rolls. The Kodak film rolls are packed in a pack of 5.60 such packs are placed on one carton making 300 rolls per carton. Since the special outer boxes made for the defendants can hold 1000 rolls, the defendants place three cartons containing 900 rolls in all in such outer boxes and twenty packs of 5 rolls are placed in any other carton to make up the 1000 film rolls for each special outer box. In that particular case only the defendants merely happened to use one carton of Konica (which had the capacity of hundred rolls) as packing to place therein 20 packs of 5 rolls of Kodak Profoto Films i.e. 100 rolls only. The carton was available with the defendants since they also export Konica rolls. It is the case of the defendants that they had offered that a Commissioner appointed to examine the entire consignment. At any rate, in view of the subsequent order allowing export, that need not be answered. 13. We may now come to the other contention namely whether this Court would have jurisdiction to entertain the present suit. From the facts on record all that has emerged is that the defendant is exporting the goods to Hong Kong. It is not the case of the plaintiffs that the defendant is thereafter selling the goods in Hong Kong. Assuming that the plaintiffs were entitled to restrict the sale of their products outside India, the cause of action if any would arise against the importer party in Hong Kong and not against the present defendants. Further there is no material on record of any agreement between the plaintiff No. 1 and the U.K. Subsidiary and whether the U.K. Subsidiary was banned from selling the goods in Hong Kong. If, therefore, the goods are sold in Hong Kong by the importer that would amount to infringement in that jurisdiction. It may be noted that even the case of Revlon Inc others (supra) the Court observed that whether the plaintiffs had any remedy for breach of contract in United States (the place of export) was not their concern. If, therefore, the goods are sold in Hong Kong by the importer that would amount to infringement in that jurisdiction. It may be noted that even the case of Revlon Inc others (supra) the Court observed that whether the plaintiffs had any remedy for breach of contract in United States (the place of export) was not their concern. The judgment which was cited again was not initiated in the country from where the goods were exported, but jurisdiction of that Court was invoked where the goods were imported and the plaintiffs therein had brought an action for infringement and passing of. Merely because the defendant exports the goods to Hong Kong cannot result in a cause of action arising within the jurisdiction of this Court. The sale has taken place in India. The legend does not prohibit the sale of the goods in India. What the importer does with the goods in Hong Kong the defendants cannot be called upon to answer the same. In my opinion, therefore, prima facie on the material as it stands this Court would have no jurisdiction to entertain this motion. It may be made clear that no motion has been taken out under section 9-A for deciding the issue of jurisdiction as a preliminary issue. However, as the jurisdiction issue has been raised it has been prima facie answered. 14. For all the aforesaid reasons I am of the view that the plaintiffs have been unable to make out a strong prima facie case either of infringement or of passing off. In the light of that the injunction granted will have to be vacated. 15. For the aforesaid reasons and considering the material on record the injunction granted stands vacated. In the circumstances of the case there shall be no order as to costs. Parties/Authorities to act on an ordinary copy of this order duly authenticated by the Associate/Personal Secretary of this Court. Injunction vacated. -----