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2008 DIGILAW 583 (GUJ)

Lark Laboratories Ltd. v. Nabros Pharma Pvt. Ltd.

2008-12-15

M.R.SHAH

body2008
Judgment M.R. Shah, J.—Present Appeal from Order under Order XLIII Rule 1(r) of the Code of Civil Procedure is arising out of the impugned order dated 02.03.2007 passed by the learned Judge of the City Civil Court, Ahmedabad below Exhibit 6 and 7 in Civil Suit No. 1735 of 2006 by which the learned Chamber Judge has allowed the said Notice of Motion granting injunction in favour of the respondent herein - original plaintiff (hereinafter referred to as ‘the plaintiff’) and against the appellant herein - original defendant (hereinafter referred to as ‘the defendant’) restraining the defendants, its proprietor, partners and directors, as the case may be, their servants, agents, dealers, stockists and distributors from manufacturing, marketing, advertising, selling and exporting its tablets used in plain, inflammation and fever under the impugned trade-mark BOLAREN along with its copyrights subsist in its artwork of the label packages etc. and any other trade-mark along with its copyrights which may be identical and/or deceptively similar as that of the plaintiff’s registered trade-mark DOLAREN along with its copyrights subsist in its artwork of the label, packages etc. and they are also further restrained from committing an act of passing off goods, from selling and exporting tablets used in pain, inflammation and fever as the goods of the plaintiff under the alleged trade-mark BOLAREN along with its copyrights subsist in its artwork of the label, packages etc. and they are also restrained from reproducing the copyrights consisting in the artwork in its trade-mark BOLAREN having identical style, get-up, layout and design as that of the plaintiff and they are also restrained from committing an act of infringement of the copyrights. 2. Respondent herein - original plaintiff had instituted Civil Suit No. 1735 of 2006 against the appellant - original defendant in the City Civil Court, Ahmedabad for infringement of their trade-mark ‘DOLAREN’ and for infringement of copyrights while passing of aforesaid trade-mark. It is the case on behalf of the plaintiff that the plaintiff’s company is inter-alia engaged in the business of manufacturing, marketing and selling and exporting medicinal and pharmaceutical preparations and having its office at Navrangpura, Ahmedabad. The suit produce of the plaintiff is in the form of tablet under the trade-mark ‘DOLAREN’ with the artistic work in its copyright. Said trade-mark ‘DOLAREN’ and the copyright consisting the artistic work in its label, packages etc. The suit produce of the plaintiff is in the form of tablet under the trade-mark ‘DOLAREN’ with the artistic work in its copyright. Said trade-mark ‘DOLAREN’ and the copyright consisting the artistic work in its label, packages etc. is adopted and started using by the plaintiff’s company who is using the trade-mark with the copyright consist in the artwork of label, packages etc. since 1998 continuously, extensively, exclusively and openly. That the defendant’s company inter-alia seems to be engaged in the business of manufacturing, marketing, selling and exporting medicinal and pharmaceutical preparations and the defendant is also manufacturing, selling and exporting an identical product under deceptive similar trade-mark ‘BOLAREN’ and copyright consisting the artistic work in its label, packages etc. which is an identical or rather ditto-to-ditto same as that of the plaintiff’s copyright subsist in its artwork consist in its packaging and also the trade-mark ‘BOLAREN’ is deceptively similar to that of the plaintiff’s trade-mark ‘DOLAREN’. It is also the case of the plaintiff that the plaintiff is very well-known and a prime manufacturer and merchant of the medicinal and pharmaceutical preparations. The product of the plaintiff has become very famous and have acquired the tremendous reputation amongst the public for its excellent quality and in consequences thereof a very valuable goodwill accumulated therein. It is also the case of the plaintiff that the plaintiff is very well-known and a prime manufacturer and merchant of the medicinal and pharmaceutical preparations. The product of the plaintiff has become very famous and have acquired the tremendous reputation amongst the public for its excellent quality and in consequences thereof a very valuable goodwill accumulated therein. It the case on behalf of the plaintiff that to distinguish its product from the products of the other manufacturers, the plaintiff have adopted and using the trade-mark ‘DOLAREN’ and also the copyright consisting in its artwork i.e. particular style, get-up, layout, design of that of the hand of a man covered with glove knocks out and to show the pain disappears with the design of zig zag and at the bottom of the packages of the plaintiff, the trade-mark ‘DOLAREN’ has been written and under it there has been a note written as ‘KNOCKS OUT PAIN, INFLAMMATION AND FEVER’, the manner of writing the trade-mark ‘DOLAREN’ on each packages both in English and in Russian language on the packages of the plaintiff is being continuously used by the plaintiff since 1998 in respect of the medicinal and pharmaceutical preparations uninterruptedly continuously, extensively and openly in many countries of the world and the plaintiff’s mark ‘DOLAREN’ in Russian language with artwork of the packages is also wholly registered as a trade-mark in class 05 bearing No. 810263 user dated claimed since 15.07.1998 in India and the plaintiff has also got registered the said trade-mark in Belarus, Syria and patent and trade-mark of the medicine under ‘DOLAREN’ in Ukraine, and also obtained produce registration certificate of the Ministry of Health of Russia and Georgia also and therefore, the plaintiff have become sole exclusive registered proprietor of the trade-mark ‘DOLAREN’ and the copyrights subsists in the artwork on its label and on the packages. It the case on behalf of the plaintiff that the defendant have not only pirated the deceptively similar trade-mark ‘BOLAREN’ but very trick fully has just replaced a single word ‘B’ in place of ‘D’ so that he can easily and tactfully get an advantages of well built up reputation and goodwill of the plaintiff and moreover the defendant have also adopted and is using exactly identical copyright consist in the artistic work of the packages of its product i.e. the defendant have copied the designs and ideas of the plaintiff’s product materials of that of the hand of a man covered with a glove knocks out and to show the pain disappears with the design of zig zag and at the bottom of the packages of the defendant, the trade-mark ‘BOLAREN’ has been written and under it there has been a note written as ‘KNOCKS OUT PAIN, INFLAMMATION AND FEVER’ the manner of writing the trade-mark ‘BOLAREN’ on each packages both in English and in Russian language on the packages of the defendant are all the way same and identical to that of the plaintiff’s packaging materials. Moreover, the defendant is also using the impugned trade-mark ‘BOLAREN’ with copyright in its artistic work with respect to the same class of goods i.e. tablets for pain, inflammation and fever and its tablets consists same quantity of the contents used by the plaintiff. Both the plaintiff and the defendant are exporting their product. Therefore, it is alleged that the plaintiff is the sole proprietor and enjoying the exclusive rights to use the said trade-mark ‘DOLAREN’ and the copyright subsists in the artwork of its label and on the packages under the provisions of the Trade Marks Act, 1999 and the Copyright Act, 1957. It is further averred in the plaint that recently in the international market the plaintiff came across that the defendant - Lark Laboratories Ltd. have launched the same product viz. Tablet used in pain, inflammation and fever having an identical or deceptively similar rather ditto to ditto imitation of the plaintiff’s popular trade-mark ‘DOLAREN’ along with the copyright in the artwork of its label and on packages viz. Tablet used in pain, inflammation and fever having an identical or deceptively similar rather ditto to ditto imitation of the plaintiff’s popular trade-mark ‘DOLAREN’ along with the copyright in the artwork of its label and on packages viz. Particular style, get-up, layout and design mentioned above which is identical with that of the plaintiff’s artwork of the packages which has adopted by the defendant in such a smart and tricky manner so as to customer would lead to purchase the defendant’s goods under the impression that said products belongs to the plaintiff. It is averred that overall effect of the packages and the trade-mark ‘BOLAREN’ along with the copyright in the artwork of its label and on packages of the defendant are identical and deceptively similar rather same as that of the plaintiff’s popular trade-mark ‘DOLAREN’ along with the copyright in the artwork of its label and on packages so as to lead the purchaser to be deceived and confused. It is also further averred in the plaint that the trade-mark ‘DOLAREN’ along with the copyright in the artwork of its label and on packages has been imitated by the defendant in such a tricky manner which shows defendant’s mala fide intention to imitate the well known mark and artwork of the plaintiff on the labels and the packages. It is also further averred that to show both marks in juxtaposition likelihood of confusion and deception is to be revealed. It is also further averred that to show both marks in juxtaposition likelihood of confusion and deception is to be revealed. Making above allegations along with other averments with regard to infringement of trade-mark, infringement of copyrights and passing off aforesaid registered trade-mark ‘DOLAREN’ the plaintiff had instituted aforesaid suit with following prayers : (a) The defendant, its successor, partners, proprietor and directors as the case may be, its servants, agents, dealers, stockiest and distributors be permanently and perpetually restrained from manufacturing, marketing, advertising and selling tablets used in pain, inflammation and fever under the impugned trademark BOLAREN along with the copyright in the artwork of its label and on packages and such other trademark having an identical and/or confusingly and/or deceptively similar trademark and copyrights subsists in its artwork, be restrained permanently and perpetually from committing an act of passing off goods for selling its tablets used in pain, inflammation and fever under the impugned trademark BOLAREN along with the copyright in the artwork of its label and on packages as that of the plaintiff’s trademark DOLAREN along with the copyright in the artwork of its label and on packages enable them from committing an act of passing of and infringement of trademark and copyright by selling and/or marketing or exporting tablet used in pain, inflammation and fever of the defendant for the popular trademark DOLERAN along with the copyright in the artwork of its label and on packages of the plaintiff and be restrained to claim any rights, title or interest under the impugned trademark BOLERAN along with the copyright in the artwork of its label and on packages. (b) The defendants be permanently and perpetually restrained from reproducing the copyright consisting in their trademark having identical style, get-up, layout and design as that of the plaintiff and be further restrained from committing an act of an infringement of the copyright. (c) A decree may be passed against the defendant and their properties which can be executed against the defendant and in favour of the plaintiff for the declaration that the plaintiff only is the proprietor of the trademark BOLERAN along with the copyright in the artwork of its label and on packages and the plaintiff only is entitled to sell and export tablets DOLERAN along with the copyright in the artwork of its label and on packages. (d) The defendant be restrained from interfering in any manner, whatsoever with the business of the plaintiff, his agents, servants, distributors and retailers from manufacturing, marketing, selling and advertising their goods by using impugned trademark BOLERAN along with the copyright in the artwork of its label and on packages. (e) The defendant be ordered to produce accounts for the sale of BOLERAN along with the copyright in the artwork of its label and on packages illegally and be directed to pay the profit whatsoever derived from the sale of product under the illegal use of the trademark BOLERAN along with the copyright in the artwork of its label and on packages to the plaintiff with 18% interest from the date of the suit till realisation. (f) The defendant be ordered for deliver up all the infringing labels, packages, dies, blocks, molds, machinery, mark and other such materials for the destruction. 3. Necessary averments with respect to cause of action and territorial jurisdiction are in Para 12 which are reproduced as under: “12. The cause of action arose when it has recently come to the knowledge of the plaintiff that the defendant has started using in the international market the trademark BOLAREN along with the copyright in the artwork of its label and on packages which is literally an identical and/or deceptively similar with the plaintiff’s registered trademark DOLAREN along with the copyright in the artwork of its label and on packages. Both the plaintiff and the defendant are exporting their product outside India but the plaintiff has acquired registration certificate of its trademark DOLAREN along with the copyright in the artwork of its label and on packages in India as well as in various countries and further the plaintiff is having its registered office in India at Ahmedabad and the defendant is also having its office in India. Moreover the plaintiff is the registered owner of the trademark DOLAREN along with the copyright in the artwork of its label and on packages and therefore under Section 134 of the Trade Marks Act, 1999 the Hon’ble Court has territorial jurisdiction to try the present suit along with interim injunction application and therefore, the plaintiff move before this Hon’ble Court to restrain the defendant.” 4. In the said suit, the plaintiff took out Notice of Motion at Exhibit 6 and 7 with following prayers : (a) Till the final hearing and disposal of the suit, the Hon’ble Court may be pleased to restrain the defendant, its proprietor, partners and directors as the case may be, their servants, agents, dealers, stockiest and distributors from manufacturing, marketing, advertising, selling and exporting its tablets used in pain, inflammation and fever under the impugned trademark BOLAREN along with its copyright subsist in its artwork of the label packages etc. and any other trademark along with its copyrights which may be identical and/or deceptively similar as that of the plaintiff’s registered trademark DOLAREN along with its copyrights subsist in its artwork of the label packages etc. (b) the defendant be restrained from committing an act of passing off goods from selling and exporting tablets used in pain, inflammation and fever as the goods of the plaintiff under the alleged trademark BOLAREN along with its copyrights subsist in its artwork of the label packages etc. (c) The defendant be restrained from reproducing the copyright consisting in the artwork in its trademark BOLAREN having identical style, get-up, layout and design as that of the plaintiff and be further restrained from committing an act of an infringement of the copyright. 5. Vide order dated 31.08.2006 the learned Chamber Judge granted ad-interim injunction as prayed for in Paras 20(a), 20(b) and 20(c), which came to be confirmed and/or made absolute till final hearing and disposal of the suit vide impugned order dated 02.03.2007 restraining the defendants, its proprietor, partners and directors, as the case may be, their servants, agents, dealers, stockists and distributors from manufacturing, marketing, advertising, selling and exporting its tablets used in plain, inflammation and fever under the impugned trade-mark BOLAREN along with its copyrights subsist in its artwork of the label packages etc. and any other trade-mark along with its copyrights which may be identical and/or deceptively similar as that of the plaintiff’s registered trade-mark DOLAREN along with its copyrights subsist in its artwork of the label, packages etc. and they are also further restrained from committing an act of passing off goods, from selling and exporting tablets used in pain, inflammation and fever as the goods of the plaintiff under the alleged trade-mark BOLAREN along with its copyrights subsist in its artwork of the label, packages etc. and they are also further restrained from committing an act of passing off goods, from selling and exporting tablets used in pain, inflammation and fever as the goods of the plaintiff under the alleged trade-mark BOLAREN along with its copyrights subsist in its artwork of the label, packages etc. and they are also restrained from reproducing the copyrights consisting in the artwork in its trade-mark BOLAREN having identical style, get-up, layout and design as that of the plaintiff and they are also restrained from committing an act of infringement of the copyrights. Being aggrieved and dissatisfied with the impugned order dated 02.03.2007 passed by the learned Chamber Judge below Exhibit 6 and 7 in Civil Suit No. 1735 of 2006, the appellant herein - original defendant has preferred present Appeal from Order. 6. Mr. B.R. Gupta, learned Advocate for the appellant has vehemently submitted that as composite suit has been filed by the plaintiff for infringement of copyrights, infringement of trademark and for passing off, as held by the Hon’ble Supreme Court in the case of Dabur India Ltd. K.R. Industries reported in AIR 2008 SC 3123 , such a composite suit for aforesaid reliefs is not maintainable. Therefore, the learned Chamber Judge has committed an error in granting injunction in favour of the plaintiff and against the defendant. It is submitted that considering provisions of Trademark Act, 1999 more particularly Section 134 of the said Act, for passing off action, the Civil Court, Ahmedabad would not have any territorial jurisdiction as admittedly the defendant is carrying on its business at Delhi and admittedly tablets are being sold in Russia. Therefore, it is submitted that when composite suit for aforesaid three reliefs is not maintainable as held by the Hon’ble Supreme Court in the aforesaid decision, the learned Chamber Judge is not justified in granting injunction as prayed for. It is submitted that for relief of passing off action, suit is required to be filed in the Court where the defendant resides and carries on business and for that purpose provisions contained in Code of Civil Procedure would be applicable. It is further submitted by Mr. It is submitted that for relief of passing off action, suit is required to be filed in the Court where the defendant resides and carries on business and for that purpose provisions contained in Code of Civil Procedure would be applicable. It is further submitted by Mr. Gupta, learned Advocate for the appellant that even as per the case of the plaintiff both plaintiff and the defendant are selling tablets in Russia and therefore, the learned Chamber Judge has committed error in assuming jurisdiction and has materially erred in granting injunction and allowing Notice of motion. It is submitted that as such defendant Company has filed suit against the plaintiff company in the Court of District Judge, Delhi for infringement of defendant company’s trademark by using name of DOLAREN and therefore when the plaintiff is in breach of defendant company’s trademark, the learned Chamber Judge has materially erred in granting injunction in favour of the plaintiff. It is also further submitted by Mr. Gupta, learned Advocate that even registered trademark of the plaintiff company ‘DOLAREN’ has been removed from the register of trademark pursuant to the order passed by the Intellectual Property Appellate Board, Ahmedabad dated 19.03.2008 and therefore, when the plaintiff is not registered trademark of DOLAREN, injunction granted by the learned Chamber Judge below Exhibit 6 and 7 deserves to be quashed and set aside/vacated. It is submitted by Mr. Gupta, learned Advocate that as goods / tablets are sold in Russia, the learned Chamber Judge ought not have granted injunction restraining the defendant from selling goods / tablets in Russia as the Civil Court at Ahmedabad would not have any territorial jurisdiction to issue injunction restraining the defendant from selling tablets / goods in Russia. Making above submissions and relying upon the decision of the Hon’ble Supreme Court in the case of Dabur India Ltd. (Supra), Mr. Gupta, learned Advocate for the appellant - original defendant has requested to allow present Appeal from Order by quashing and setting aside the impugned order passed by the learned Chamber Judge, City Civil Court, Ahmedabad below Exhibit 6 and 7 and vacate the injunction granted by the learned Chamber Judge. 7. Appeal from Order is opposed by Mr. Soparkar, learned Senior Advocate appearing on behalf of the defendant - original plaintiff. 7. Appeal from Order is opposed by Mr. Soparkar, learned Senior Advocate appearing on behalf of the defendant - original plaintiff. It is submitted that on fare reading of the decision of the Hon’ble Supreme Court in the case of Dabur India Ltd. (Supra), it cannot be said that composite suit for infringement of registered trademark, infringement of copyrights and relief for passing off action is not maintainable. It is submitted that said decision is required to be read in the facts of the case. It is submitted that there is no absolute proposition of law laid down by the Hon’ble Supreme Court in the said decision that composite suit for aforesaid three reliefs i.e. infringement of registered trademark, infringement of copyrights and relief for passing off action is not maintainable at all. It is submitted that in the case before the Hon’ble Supreme Court composite suit was filed by the plaintiff - Dabur India Ltd in the Delhi High Court against the defendant - K.R. Industries for copyright infringement and relief for passing off action. So far as relief for passing off action is concerned, the respondent - defendant submitted application in the suit purported to be under Order VII Rule 11 of the Code of Civil Procedure contending that as the defendant is resident of Andra Pradesh, the Delhi High Court had no jurisdiction. The learned Single Judge of the Delhi High Court accepted the said contention of the defendant. That Dabur India Ltd. Preferred Intra Court appeal and the Division Bench of the Delhi High Court dismissed the said appeal by holding that the matter is covered by the decision of Hon’ble Supreme Court in the case of Dhodha House vs. S.K. Maingi reported in 2006 (9) SCC 41 . Feeling aggrieved and dissatisfied with the aforesaid two orders holding that Delhi High Court has no jurisdiction for relief of passing off action, the plaintiff - Dabur India Ltd., approached Hon’ble Supreme Court contending inter-alia that even for relief of passing off action, such a suit before the Delhi High Court would be maintainable. Feeling aggrieved and dissatisfied with the aforesaid two orders holding that Delhi High Court has no jurisdiction for relief of passing off action, the plaintiff - Dabur India Ltd., approached Hon’ble Supreme Court contending inter-alia that even for relief of passing off action, such a suit before the Delhi High Court would be maintainable. It is submitted that in the aforesaid fact situation, the Hon’ble Supreme Court has held that such a composite suit for copyright infringement as well as relief for passing off action before the Delhi High Court is not maintainable as admittedly the defendant was residing at Andra Pradesh, Delhi High Court would not have any jurisdiction. To that extent the Hon’ble Supreme Court observed that such a composite suit would not entitle a Court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Therefore, it is submitted that there is no absolute proposition of law laid down by the Hon’ble Supreme Court in the said decision as sought to be canvassed on behalf of the defendant that such a composite suit for infringement of trademark, copyright infringement and relief for passing off action is not maintainable at all and same is to be dismissed. Therefore, it is submitted that the contention on behalf of the defendant that as composite suit for aforesaid reliefs was not maintainable, the learned Chamber Judge ought not to have granted injunction, cannot be accepted. Mr. Sorparkar, learned Senior Advocate has relied upon decision of this Court in the case of Gulabchand Makanji vs. Motaponda Vibhag Tenants Co-operative Agricultural Society Ltd. reported in AIR 1962 Guj 296 . It is submitted that as held by this Court in a case where part of the plaint is triable by a Civil Court, if the plaintiff does not file two separate plaints but files only one plaint, the plaintiff should be asked to amend the plaint so as to make it wholly triable by the Civil Court by deleting the portion of the plaint which is triable by another Court and the procedure of returning the plaint to be presented in another Court is applicable only when the whole suit is triable by another Court. Mr. Mr. Sorparkar, learned Senior Advocate has also relied upon decision in the case of Smt. Sheela Adhikari vs. Rabindra Nath Adikari, reported in AIR 1998 Calcutta 273 and it is submitted that as held by the Division Bench of the Calcutta High Court where some of the causes of action united in the plaint are arising within the territorial jurisdiction of the Court where the suit has been filed, while other causes of action joined therein are not triable by it for want of such jurisdiction, neither the suit can be dismissed as a whole nor the plaint can be returned as a whole, for the plaintiff has a right to a judgment on such causes of action as are otherwise cognizable by that Court and in such case, the Court can call upon the plaintiff to amend his plaint by striking out all such causes of action as are beyond its jurisdiction and then proceed with the plaint in respect of the remaining causes of action which are within its jurisdiction. It is further held by the Calcutta High Court that if the plaintiff does not amend the plaint the Court has to proceed to judgment with the plaint as it stands unamended on all such causes of action as are within its cognizable and to dismiss the suit in respect of the causes of action outside its jurisdiction. Mr. Sorparkar, learned Senior Advocate has also relied upon decision of the Hon’ble Supreme Court in the case of Sandeep Polymers (P) Ltd. vs. Bajaj Auto Ltd. and Ors. reported in 2007 (7) SCC 148 and has submitted that as held by the Hon’ble Supreme Court in the aforesaid fact situation, amendment of the original plaint is enough and return or rejection of the original plaint is not necessary. Therefore, it is submitted that contention on behalf of the defendant that for passing off action, Civil Court at Ahmedabad has no jurisdiction and therefore, suit is to be dismissed as a whole and composite suit for aforesaid reliefs i.e. infringement of registered trademark, infringement of copyrights and relief for passing off action is not maintainable and therefore learned Chamber Judge has committed an error in granting injunction cannot accepted. 8. 8. Now so far as the contention on behalf of the defendant that the plaintiff is in breach of trademark of the defendant for which Civil Suit is filed by the defendant in the Delhi Court and therefore, injunction could not have been granted by the learned Chamber Judge is concerned, it is submitted that as such till date there is no injunction granted by the Delhi Court in the suit filed by the defendant alleging infringement of their trademark. So far as the contention on behalf of the defendant that Intellectual Property Appellate Board has passed the order directing the Registrar to remove mark ‘DOLAREN’ under the register of trade marks is concerned, it is submitted that the order passed by the Intellectual Property Appellate Board dated 02.03.2007 has been stayed by the learned Single Judge of this Court vide interim order passed in Special Civil Application No. 11831 of 2008. It is submitted that respondent - defendant is aware of the said stay order staying the order passed by the Intellectual Property Appellate Board, Ahmedabad still deliberately it is contended by the defendant that registered trademark ‘DOLAREN’ has been removed from the register. It is submitted that there is deliberate attempt on the part of the defendant to mislead and misguide the Court. It is submitted that the defendant has appeared in the aforesaid Special Civil Application through very Counsel who is appearing in the present proceedings on behalf of the defendant and still above submission is made, and therefore, it is requested to take serious note of the said conduct of defendant. It is submitted that in the facts and circumstances of the case more particularly when the plaintiff is registered trademark of ‘DOLAREN’ using same since 1998 and as it is found that the defendant is using similar and deceptive trademark, has committed infringement of registered trademark, infringement of copyright and committed breach of passing off, the learned Chamber has not committed any error in granting injunction in favour of the plaintiff and against the defendant. Therefore, it is requested to dismiss the Appeal from Order with exemplary costs. 9. Heard the learned Advocates appearing on behalf of the respective parties. 10. Therefore, it is requested to dismiss the Appeal from Order with exemplary costs. 9. Heard the learned Advocates appearing on behalf of the respective parties. 10. Short but interesting question of law posed for consideration of this Court is whether a composite suit for infringement of registered trademark; infringement of copyright and relief for passing off action is maintainable or not?. Relying upon the decision of the Hon’ble Supreme Court in the case of Dabur India Ltd. (Supra), it is the contention on behalf of the defendant that a composite suit for infringement of registered trademark; infringement of copyright and relief for passing off action is not maintainable and therefore, the learned Chamber Judge has committed an error in granting injunction against the defendant and in favour of the plaintiff in the suit which is not maintainable. It is to be noted that as per cause title in the plaint, original plaintiff is actually and voluntarily resides and/or carries on business at Ahmedabad. Said plaint is instituted by the plaintiff against the defendant for infringement of registered trademark; infringement of copyright and relief for passing off action with respect to aforesaid trademark. Section 134 of the Trade Marks Act, 1999 reads as under: “Section 134: Suit for infringement, etc. to be instituted before District Court: (1) No suit– (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of Clauses (a) and (b) of Sub-section (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain”. Section 62 of the Copyright Act, 1957 reads as under: “62. Section 62 of the Copyright Act, 1957 reads as under: “62. Jurisdiction of Court over matters arising under this Chapter — (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district Court having jurisdiction. (2) For the purpose of Sub-section (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. 11. Considering above, it cannot be said that for infringement of registered trademark of the plaintiff’s company ‘DOLAREN’ and for infringement of copyright, Civil Court at Ahmedabad has no jurisdiction at all. Considering above provisions, for the purpose of infringement of registered trademark and even for infringement of copyright, “District Court having jurisdiction shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Under the circumstances as the plaintiff company carries on business at Ahmedabad, suit filed by the said company for infringement of registered trademark ‘DOLAREN’ and also for infringement of copyright, Civil Court at Ahmedabad would have territorial jurisdiction. Relying upon the decision of the Hon’ble Supreme Court in the case of Dabur India Ltd. (Supra), it is sought to be contended that as for relief of passing off action, Civil Court at Ahmedabad would not have jurisdiction and therefore, such composite suit for aforesaid three relief’s is not maintainable at all and plaint is to be rejected. Relying upon the decision of the Hon’ble Supreme Court in the case of Dabur India Ltd. (Supra), it is sought to be contended that as for relief of passing off action, Civil Court at Ahmedabad would not have jurisdiction and therefore, such composite suit for aforesaid three relief’s is not maintainable at all and plaint is to be rejected. For that purpose, facts of the case before the Hon’ble Supreme Court in the case of Dabur India Ltd. (Supra) are required to be considered. It cannot be disputed that every decision of the Court is in the facts of particular case. In the case before the Hon’ble Supreme Court, Dabur India Ltd (Plaintiff). instituted composite suit against the K.R. Industries (Defendant) for copyright infringement as well as for relief for passing off action before the Delhi High Court. It was found that defendant is the resident of Andra Pradesh. The defendant filed application in the said suit purported to be under Order VII Rule 11 of the CPC contending that as defendant is resident of Andra Pradesh, Delhi High Court has no jurisdiction. The learned Single Judge of the Delhi High Court accepted the said contention of the defendant and held that suit filed by the plaintiff insofar it relates to the relief for passing off, is not maintainable for want of territorial jurisdiction and since the plaint is filed for both causes of action, namely, infringement of copyright and passing off, same is required to be returned to the plaintiff for filing in the Court of competent jurisdiction. Said order was challenged by the plaintiff - Dabur India Ltd. before the Division Bench of the Delhi High Court and it was contended for both the relief’s suit before the Delhi High Court would be maintainable. However, it was also submitted that as relief for infringement of copyright is concerned, Delhi High Court would have jurisdiction and plaint ought not to have been returned as a whole. Accepting the second submission the Division Bench of the Delhi High Court in Para -6 has held as under: “6. However, it was also submitted that as relief for infringement of copyright is concerned, Delhi High Court would have jurisdiction and plaint ought not to have been returned as a whole. Accepting the second submission the Division Bench of the Delhi High Court in Para -6 has held as under: “6. So far the relief claimed as against the infringement of copyright is concerned, it is clearly established that the trial Court will have the territorial jurisdiction and therefore, we also agree with the conclusions and findings recorded by the learned Single Judge that in the case of infringement of copyright, this Court will have the jurisdiction. The learned Single Judge has directed that the plaint be returned to the appellant / plaintiff for filing of the same in the Court of competent jurisdiction. We make it clear that it will be open to the appellant / plaintiff to file a fresh suit in the Court of competent jurisdiction in accordance with law with a further observation that so far as the relief for infringement of copyright is concerned, this Court will have jurisdiction.” 12. Against the judgment passed by the Division Bench of the Delhi High Court, original plaintiff - Dabur India Ltd. approached Hon’ble Supreme Court contending inter-alia that relying decision of the Hon’ble Supreme Court in the case of Dhodha House (Supra) such a composite suit for both reliefs under the copyrights act as well as trademark act is maintainable. Considering above fact situation and decision of the Hon’ble Supreme Court in the case of Dhodha House (Supra), as well as Order II Rule 3 of the CPC, the Hon’ble Supreme Court has held that as Delhi High Court has no territorial jurisdiction to entertain the suit for relief for passing off action as defendant is residing at Andra Pradesh, such a composite suit for copyright infringement and relief for passing off action is not maintainable. Hon’ble Supreme Court has further clarified what would be meant by a composite suit? As held by the Hon’ble Supreme Court in Para 29, composite suit would not entitle a Court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Hon’ble Supreme Court has further clarified what would be meant by a composite suit? As held by the Hon’ble Supreme Court in Para 29, composite suit would not entitle a Court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Hon’ble Supreme Court in the said decision has further observed that composite suit within the provisions of the 1957 Act as considered in Dhoda House (Supra) therefore, would mean the suit which is founded on infringement of a copyright and wherein the incidental power of the Court is required to be invoked. A plaintiff may seek remedy which can otherwise be granted by the Court. It is further observed by the Hon’ble Supreme Court that it was that aspect of the matter which had not been considered in Dhoda House (Supra) but it never meant that two suits having different causes of action can be clubbed together as a composite suit. Therefore, considering decision of the Hon’ble Supreme Court in Dhoda House (Supra) as a whole and the facts stated herein above, it cannot be said that by the said decision, the Hon’ble Supreme Court has laid down absolute proposition of law that such a composite suit for the reliefs i.e. infringement of trade-mark, infringement of copyrights and passing off before the Court having territorial jurisdiction is not maintainable at all as sought to be canvassed on behalf of the defendant. On fair reading of the aforesaid decision, it appears that it is held by the Hon’ble Supreme Court that composite suit for infringement of trade-mark, infringement of copyrights and passing off would not be maintainable, if otherwise it is found that for any of such relief the Court has no jurisdiction, territorial or otherwise. Under the circumstances, the contention on behalf of the defendant that for such a composite suit i.e. infringement of trade-mark, infringement of copyrights and passing off is not maintainable and therefore, the learned Judge has committed an error in granting injunction cannot be accepted. 13. Under the circumstances, the contention on behalf of the defendant that for such a composite suit i.e. infringement of trade-mark, infringement of copyrights and passing off is not maintainable and therefore, the learned Judge has committed an error in granting injunction cannot be accepted. 13. Even otherwise as held by the learned Single Judge of this Court in the case of Gulabchand Makanji (Supra), in a case where part of the plaint is triable by a Civil Court, if the plaintiff does not file two separate plaints but files only one plaint, the plaintiff should be asked to amend the plaint so as to make it wholly triable by the Civil Court by deleting that portion of the plaint which is triable by another Court and if such an amendment is made, the plaint would be triable by the Civil Court. But if the plaintiff does not do so, then the whole plaint will have to be rejected, as a plaint which is not wholly triable by the Civil Court. In the case before the learned Single Judge it was sought to be contended on behalf of the defendant that the Civil Court has no jurisdiction to entertain the suit which is triable wholly by a revenue Court. It was sought to be contended on behalf of the plaintiff that in the alternative in the plaint it was stated that the plaintiff was claiming the amount also by way of compensation and therefore, to that extent Civil Court would have jurisdiction and considering above, the learned Single Judge has held as above by further observing that procedure of returning the plaint to be presented in another Court is applicable only when the whole suit is triable by another Court. 14. 14. Identical question came to be considered by the Division Bench of the Calcutta High Court in the case of Smt.Sheela Adhikari (Supra) and it is held by the Division Bench in the said decision that where some of the causes of action united in the plaint are arising within the territorial jurisdiction of the Court where the suit has been filed, while other causes of action joined therein are not triable by it for want of such jurisdiction, neither the suit can be dismissed as a whole nor the plaint can be returned as a whole, for the plaintiff has a right to a judgment on such causes of action as are otherwise cognizable by that Court. It is further observed by the Division Bench that the Court can call upon the plaintiff to amend his plaint by striking out all such causes of action as are beyond its jurisdiction and then proceed with the plaint in respect of the remaining causes of action which are within its jurisdiction. It is further held by the Calcutta High Court that if the plaintiff does not amend the plaint, the Court has to proceed to judgment with the plaint as it stands unamended on all such causes of action as are within its cognizable and to dismiss the suit in respect of the causes of action outside its jurisdiction. Even this Court is also of the opinion that such is the correct procedure to be adopted. 15. In the case of Sandeep Polymers (P) Ltd. (Supra), the Hon’ble Supreme Court has held and observed that in a case where suit is filed on various causes of action and it is found that for the some causes of action, the Court in which suit is filed has no jurisdiction, in that case, amendment of the original plaint was enough and return or rejection of the original plaint was not necessary and therefore, fresh suit could be filed in the correct Court in respect of the causes of action for which the original Court did not have jurisdiction. Under the circumstances, the contention on behalf of the appellant - original defendant that composite suit for infringement of copyright; infringement of registered trademark and passing off is not maintainable at all, same is to be rejected cannot be accepted. 16. Under the circumstances, the contention on behalf of the appellant - original defendant that composite suit for infringement of copyright; infringement of registered trademark and passing off is not maintainable at all, same is to be rejected cannot be accepted. 16. Now so far as the merits of the case is concerned, considering the fact that plaintiff is registered trademark ‘DOLAREN’ and when it is specifically found by the learned Chamber Judge that defendant has committed breach of infringement of aforesaid registered trademark and infringement of copyright by using similar deceptive name ‘BOLAREN’ etc., it cannot be said that the learned Chamber Judge has committed any error in granting injunction in favour of the plaintiff and against the defendant as stated herein above. 17. Now so far as the contention on behalf of the appellant - defendant that in view of the order passed by the Intellectual Property Appellate Board dated 19.03.2008 allowing the appeal preferred by the defendant and directing the Registrar to remove mark ‘DOLAREN’ under No. 810263 from the Register of trade mark is concerned, it is to be noted and it is not disputed that said order passed by the Intellectual Property Appellate Board is subject matter of Special Civil Application No. 11831 of 2008 before this Court and learned Single Judge has admitted the said Special Civil Application and has granted interim stay of implementation, operation and execution of the said order dated 19.03.2008. At this stage it is required to be noted that infact the very Advocate appearing on behalf of the appellant has appeared in Special Civil Application and still it is submitted on behalf of the appellant - defendant that there is no registered trademark ‘DOLAREN’ in favour of the plaintiff as Intellectual Property Appellate Board vide order dated 19.03.2008 has directed the Registrar to remove mark ‘DOLAREN’ from the register of trade mark. Therefore, it appears that learned Advocate for the appellant has tried to mislead and misguide this Court. At this stage, Mr. Gupta, learned Advocate for the appellant has submitted that though he has appeared on behalf of the appellant in the said Special Civil Application but he is not aware of the subject matter of Special Civil Application. Aforesaid submission cannot be accepted. It cannot be accepted that though he has appeared in aforesaid Special Civil Application, he is not aware of the subject matter of the same. Aforesaid submission cannot be accepted. It cannot be accepted that though he has appeared in aforesaid Special Civil Application, he is not aware of the subject matter of the same. Be that as it may, when the stay order granted by the learned Single Judge of this Court in aforesaid Special Civil Application has been served upon the appellant, at least they are supposed to know the subject matter of Special Civil Application. Under the circumstances, as the appellant - original defendant has tried to mislead this Court, present Appeal from Order deserves to be dismissed with exemplary costs. 18. For the reasons stated above, there is no substance in the present Appeal from Order, which deserves to be dismissed and accordingly it is dismissed with exemplary costs which is quantified at Rs. 15,000/- (Rupees Fifteen Thousand only), which the appellant is directed to deposit with this Court within a period of 2(two) months from today and on such deposit Registry is directed to transmit the same to the High Court Legal Aid Committee. If aforesaid amount is not deposited within stipulated time as stated herein above, Registry is directed to place this matter before this Court for passing appropriate order. In view of dismissal of Appeal from Order, no order in Civil Application.