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Gujarat High Court · body

2009 DIGILAW 50 (GUJ)

UNILEVER PLC v. VESCO LABORATORIES

2009-01-30

M.R.SHAH

body2009
JUDGMENT ( 1 ) ADMIT. Shri Umesh A. Trivedi, learned advocate waives service of notice of admission on behalf of respondents-original defendants. With the consent of learned advocates appearing for the respective parties, the appeal from order is taken up for final hearing today. ( 2 ) PRESENT appeal from order under Order 43 Rule 1 of the Code of Civil Procedure is preferred by the appellants-original plaintiffs (hereinafter referred to as "plaintiffs") challenging the order passed by the learned Chamber Judge, City Civil Court at Ahmedabad dated 17. 10. 2008 passed below Exh. 25 in Civil Suit no. 2058 of 2008 by which the learned Chamber Judge has allowed the said application submitted by the original defendant No. 1 by disposing of the said suit on the ground that the city Civil Court at Ahmedabad has no jurisdiction to grant the reliefs sought in the said suit and thereby returning the plaint to the plaintiffs for presentation before the appropriate court having the jurisdiction, in exercise of the powers under Order 7 Rule 10 of the Code of Civil Procedure. ( 3 ) ORIGINAL plaintiffs have instituted Civil Suit no. 2058 of 2008 in the City Civil Court at ahmedabad for infringement of trade mark and copyright and action for passing off against the defendants and have prayed the following reliefs: " (a) that this Hon'ble Court be pleased to restrain the defendant by itself, its partners, proprietors, servants, employees, agents, stockists and/or distributors all persons claiming under the defendants howsoever by a perpetual order and injunction from in any manner using the said impugned label and/or trade dress and/or any other label/trade dress containing the artistic work, design, colour scheme, layout and get up which are identical with or colourably similar to the artistic work, design, colour scheme, layout and get up of the plaintiff's label and/or trade dress so as to infringe the plaintiff No. 2 copyrights contained in the plaintiffs' label and/or trade dress; (b) that this Hon'ble Court be pleased to restrain the defendant by itself, its servants, agents, stockists and distributors by a perpetual order and injunction of this Hon'ble court from in any manner using the impugned trade dress, colour scheme, get up, label or any other trade dress, label, get up. colour scheme deceptively similar to the plaintiffs' label, trade dress, colour scheme so as to pass off the defendants' goods as and for those of the plaintiffs; (c) that the defendants be ordered and decreed by this Hon'ble Court to pay to the plaintiffs the sum of Rs. 5,00,000/- as and by way of damages or in the alternative, the defendants be ordered and decreed to disclose the true and faithful accounts of the profits earned by the defendant by using the said impugned trade dress and be further ordered and decreed by this Hon'ble Court to pay to the plaintiffs such amount as may be found due on such account being taken; (d) that the defendants, either by itself or its partners, proprietors, servants, agents, employees, stockists and/or distributors and all persons claiming under the defendants be ordered and directed to deliver upto the plaintiffs for destruction of all the defendants' impugned goods/products, articles, dyes, cartons, labels, pamphlets, literature, bill books, application form for distributorship, deposit forms for collection of deposits, boxes, wrappers, labels, paper and things, stationery, receipts, brochures, pamphlets, all promotional and advertising material, blocks and instruments, images of all kinds, other materials, effects and things of all kinds and nature bearing and/or containing any reference in any manner whatsoever to the impugned trade dress of the defendants' mark "clomex" and/or the impugned labels in respect thereof. " 3. 1 It is the case on behalf of the plaintiffs that plaintiff No. 1 is a registered proprietor of the trade mark "domex" which is a coined, unique and invented word. That the plaintiff no. 1 is solely and exclusively using the said trade mark in India by virtue of the rights conferred on it by the Trade Marks Act, 1999 (hereinafter referred to as "the Act" ). No person or entity is entitled to use the said trade mark or any marks deceptively similar thereto except the plaintiffs. That any unauthorised manufacturing and/or marketing and/or trading in goods bearing the plaintiffs' registered trade marks is an infringement of the plaintiffs' said trade mark. Plaintiff No. 1 in such capacity as the registered proprietor of the said trade mark, has permitted the plaintiff No. 2 (which is a subsidiary of the plaintiff No. 1 )to use the said trade mark. That vide a Trade mark Licence Agreement dated 18th November, 1980, entered into between the plaintiff no. Plaintiff No. 1 in such capacity as the registered proprietor of the said trade mark, has permitted the plaintiff No. 2 (which is a subsidiary of the plaintiff No. 1 )to use the said trade mark. That vide a Trade mark Licence Agreement dated 18th November, 1980, entered into between the plaintiff no. 1 and the plaintiff No. 2, the plaintiff No. 1 granted to the plaintiff No. 2, a licence and right to use the trade marks mentioned in the schedule to the said Agreement upon terms and conditions as more particularly contained therein. That by an Addendum dated 30th December, 2004, the plaintiff No. 1 also granted to the second plaintiff, a licence and right to use the trade marks shown in the statement annexed to the said addendum which inter-alia contained the said trade mark "domex". The plaintiff No. 2 has in its capacity as a permitted user extensively used and advertised the said trade mark in India and also spent a considerable amount of money on publicity expenses to advertise its produces bearing the said trade mark. The plaintiff No. 2 has spent on an average an amount of Rs. 10. 00 crores per year for the advertising and promotional expenditure relating to the said product domex. That the plaintiffs have continued to use the said trade mark consisting of the word "domex" openly, extensively and continuously in the course of trade in respect of the range of bleaches and germ free floor cleaners manufactured by them. As a result of the intrinsic quality of the above said goods manufactured by the plaintiffs and the sales promotional efforts and advertisements carried out, the said trade mark DOMEX has acquired a tremendous and considerable reputation and trans-border reputation and it is associated in the minds of the traders and purchasing and consuming public in several countries including India exclusively with the plaintiffs' merchandise and none other. The plaintiffs are the lawful proprietors of the above said trade marks containing the word DOMEX and have obtained statutory protection of the same. The above said registrations are valid, subsisting and existing in force and confer upon the plaintiffs, the exclusive right to use the trade mark DOMEX to the exclusion of all others. 3. 2 The plaintiff No. 2 in or about July 2001 commissioned one Lintas India Limited for creation of graphic design and one Mr. The above said registrations are valid, subsisting and existing in force and confer upon the plaintiffs, the exclusive right to use the trade mark DOMEX to the exclusion of all others. 3. 2 The plaintiff No. 2 in or about July 2001 commissioned one Lintas India Limited for creation of graphic design and one Mr. Sunil jakkal employed as an Art Director therein prepared an artistic label/graphic which inter-alia contains an artistic representation of the word "domex" in white colour with two arrows, a white one appearing over the said word and a red arrow below the said word "domex". The said artwork has been prominently used by the plaintiff No. 2 upon the label of the product in question and forms an integral component of its trade dress. The said artwork delineates both the arrows as moving/pointing in opposite directions and the said arrows nearly encapsulate the word "domex" between them. The bottle containing the plaintiff No. 2's said product is of a peculiar shape, of a dark blue colour having a red cap and the said label contains a navy blue background upon which the said artwork of the "domex" word mark with the said two arrows are represented. Above the word "domex" appear the words "disinfectant home Cleaner" in white on a red background and below the word "domex" are the words "kills all known Germs Dead" in white on a lighter blue background. It is also the case on behalf of the plaintiffs that the said label containing all the aforesaid contents/elements is an artistic work in which copyright subsists. It is also the case on behalf of the plaintiffs that the term "kill all Known Germs Dead" is a slogan/heading in which trade mark and copyright subsists and which has now been copied by the defendants by adopting "removes Known Germs" on the impugned product. It is the case on behalf of the plaintiffs that in or around August 2008 for the first time the plaintiff No. 2's officers whilst on a routine market visit came across the product of the defendants bearing the said trade mark "clomex" in respect thereof bearing the impugned trade dress being stocked and sold openly in Ahmedabad. That upon a perusal of the declarations appearing on the bottle of the said impugned product, the plaintiffs realised that the same is being manufactured and sold by the defendant No. 1. That upon a perusal of the declarations appearing on the bottle of the said impugned product, the plaintiffs realised that the same is being manufactured and sold by the defendant No. 1. That the plaintiffs have found out that the said mark "clomex" has been registered vide TM No. 1242993 in Class 3 and that the registered proprietor of the said mark is the defendant No. 2 herein. That the plaintiffs have taken corrective steps with alacrity and filed a Rectification Petition with the trade Mark Registry, Ahmedabad on or around 22nd August, 2008, to expunge the impugned mark "clomex" from the Register and accordingly rectify the same. Therefore the plaintiffs have filed the said suit for infringement of copyright by the defendants as well as against the act of passing off by the defendants. Thus, in substance, the suit has been filed by the plaintiffs for infringement of trade mark "domex", infringement of copyright and action for passing off claiming the reliefs stated hereinabove. 3. 3 In the aforesaid suit, the defendant No. 1 having been served with the summonses of the aforesaid suit, Submitted application Exh. 25 under Order 7 Rule 11 of the CPC and Section 134 of the Act requesting to reject the plaint on the ground that the City Civil Court at ahmedabad had no-territorial jurisdiction to entertain the suit and the plaint is liable to be rejected/returned. It was contended on behalf of the defendant No. 1 that considering the cause of action pleaded by the plaintiffs as mentioned in para 29 of the plaint and considering Section 134 of the Trade Marks Act, the plaintiffs are not residing or having their place of business within the jurisdiction of the City civil Court at Ahmedabad and the defendants are also outside the jurisdiction of the City Civil court at Ahmedabad and therefore the said suit is not maintainable and the City Civil Court at Ahmedabad had no territorial jurisdiction. It was also submitted that the defendants' place of business is situated outside the territorial limits and the plaintiffs are also situated outside the territorial jurisdiction of the City civil Court at Ahmedabad. Therefore it was requested to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC, by holding that the suit is barred by the Trade marks Act. 3. Therefore it was requested to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC, by holding that the suit is barred by the Trade marks Act. 3. 4 The aforesaid application was opposed by the plaintiffs by submitting that as the defendants are selling the goods within the territorial jurisdiction of the City Civil Court at ahmedabad by infringing the trade mark, copyright and they are passing of the goods, considering Section 20 (c) read with provisions of the Trade Marks Act, the City Civil Court at ahmedabad would have jurisdiction. It was also contended on behalf of the plaintiffs that sub-sec. (2) of Section 134 of the Act provides an additional jurisdiction to the plaintiffs to institute the suit before the District Court having the jurisdiction where the plaintiffs are residing. It is submitted that sub-sec. (2) of section 134 of the Act cannot be construed taking away the rights of the plaintiffs to institute the suit as per Section 20 of the CPC more particularly clause (c) of Section 20 of the CPC i. e. where the cause of action has arisen. Therefore it was submitted that when the defendants are selling the goods within the territorial jurisdiction of the City Civil Court at ahmedabad for passing off action wherever the goods are being sold that Court would have the jurisdiction. 3. 5 That the learned Judge of the City Civil court at Ahmedabad by the impugned order allowed the said application Exh. 25, returning the plaint to the plaintiffs for presentation the same before the appropriate court having the jurisdiction by holding that considering section 134 of the Act and no cause of action can be said to have been arisen and/or part thereof in the city of Ahmedabad and merely because the goods are being sold within the territorial limits of the City Civil Court at ahmedabad, it cannot be said that the City Civil court at Ahmedabad would have jurisdiction. 3. 6 Being aggrieved and dissatisfied with the impugned order dated 17. 10. 2008 passed by the learned Chamber Judge, City Civil Court at Ahmedabad passed below Exh. 3. 6 Being aggrieved and dissatisfied with the impugned order dated 17. 10. 2008 passed by the learned Chamber Judge, City Civil Court at Ahmedabad passed below Exh. 25 in Civil suit No. 2058 of 2008 in returning the plaint to the plaintiffs for presentation of the same before the appropriate court having the jurisdiction, by holding that the reliefs sought in the plaint the City Civil Court at Ahmedabad has no jurisdiction, the appellants herein-original plaintiffs have preferred the present appeal from order. ( 4 ) SHRI Mihir Thakore, learned Senior Advocate appearing on behalf of the appellants-original plaintiffs has vehemently submitted that the learned Chamber Judge has not properly appreciated and considered Section 134 of the Act and has also not properly considered section 20 of the CPC. It is submitted that the learned Judge has erred in holding that no cause of action has arisen within the territorial jurisdiction of the City Civil Court at ahmedabad. It is submitted that the learned judge has not properly interpreted the provisions of Section 134 of the Act and in particular the provisions of Section 134 (1) (c) of the act read with Section 134 (2) of the Act. It is submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original plaintiffs has submitted that the suit has been filed by the plaintiffs against the defendants for action of passing off also and therefore considering Section 134 (1) (c) of the Act the suit before the City Civil Court at ahmedabad could be maintainable at least for such relief. It is also further submitted that even with respect to other reliefs for infringement of trade mark and the copyright also, the City Civil Court at Ahmedabad would have jurisdiction. It is submitted that in any case sub-sec. (2) of Section 134 of the Act could not have taken away the right of the plaintiffs to institute the suit where the cause of action and or part of cause of action has arisen in light of Section 20 (c) of the CPC. It is further submitted that by sub-sec. (2) of Section 134 of the Act, the additional place/jurisdiction is provided to the plaintiffs who have filed the suit for infringement of trade mark and relating to any right in a registered trade mark and even for infringement of copyright. It is further submitted that by sub-sec. (2) of Section 134 of the Act, the additional place/jurisdiction is provided to the plaintiffs who have filed the suit for infringement of trade mark and relating to any right in a registered trade mark and even for infringement of copyright. Therefore it is submitted that the learned Chamber judge has materially erred in holding that the city Civil Court at Ahmedabad has no jurisdiction to try the suit though the goods were being sold by the defendants in the city of ahmedabad. 4. 1 Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the appellants-original plaintiffs has relied upon the decision of the Hon'ble Supreme Court in the case of exphar Sa and another v. Supharma Laboratories Limited and another reported in (2004)3 SCC 688 : ( AIR 2004 SC 1682 ) in support of his above submission. 4. 2 Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the appellants-original plaintiffs has also relied upon the decision of the learned single Judge of this Court in the case of Pam Pharmaceuticals v. Richardson Vicks Inc. and Ors. reported in (2001) 1 GLR 125 in support of his submission that for action of passing off, the place where the goods are being sold, it can be said that the cause of action has arisen and therefore the District Court within the whose jurisdiction goods are being sold would have the jurisdiction. By making the above submissions and relying upon the aforesaid decisions, it is requested to allow the present appeal from order. ( 5 ) APPEAL from order is opposed by Shri umesh Trivedi, learned advocate appearing on behalf of the original defendant No. 1. It is submitted that admittedly both the plaintiffs are residing outside the territorial jurisdiction of the City Civil Court at Ahmedabad and even the defendants are also having the place of business outside the territorial jurisdiction of the City Civil Court at Ahmedabad and therefore considering Section 134 of the Act more particularly sub-sec. (2) of Section 134 of the act, the learned Chamber Judge has rightly held that the City Civil Court at Ahmedabad had no jurisdiction. (2) of Section 134 of the act, the learned Chamber Judge has rightly held that the City Civil Court at Ahmedabad had no jurisdiction. It is further submitted that, as rightly observed by the learned Chamber Judge, merely because the goods are being sold in the city of Ahmedabad, it cannot be said that that the cause of action has arisen to institute the suit within the territorial jurisdiction of the City Civil Court at Ahmedabad. 5. 1 He has further submitted that even otherwise as a composite suit is filed for the three reliefs viz. , infringement of trade mark, infringement of copy right and action for passing off, and therefore, as held by the Hon'ble supreme Court in the case of Dabur India Limited v. K. R. Industries reported in AIR 2008 sc 3123 , such a composite suit for infringement of trade mark, infringement of copyright and action for passing off is not maintainable. 5. 2 He has also relied upon the decision of the Hon'ble Supreme Court in the case of dhodha House v. S. K. Maingi reported in (2006) 9 SCC 41 : (AIR 2006 SC 730 ). Therefore, it is submitted that, in the facts and circumstances of the case, the learned Chamber judge has rightly held that no cause of action has arisen within the territorial jurisdiction of the City Civil Court at Ahmedabad and therefore when it is held that the City Civil Court has no jurisdiction to entertain the suit, the same is rightly returned by the learned Judge to the plaintiffs for presentation of the same before the appropriate Court having the jurisdiction, it cannot be said that the learned trial court has committed any error. Therefore it is requested to dismiss the present appeal from order. ( 6 ) HEARD the learned advocates appearing on behalf of the respective parties. ( 7 ) AS stated hereinabove the suit has been filed by the plaintiffs for infringement of trade mark, infringement of copyright and action for passing off. Thus, the suit filed by the plaintiffs is for action for passing off also. It is not in dispute that the goods manufactured by the defendants were being sold in the City of ahmedabad. Thus, the suit filed by the plaintiffs is for action for passing off also. It is not in dispute that the goods manufactured by the defendants were being sold in the City of ahmedabad. It is true that both the plaintiffs are having their registered offices outside the city of Ahmedabad i. e. outside the territorial jurisdiction of the City Civil Court at ahmedabad. As per Section 134 of the Act, no suit for the infringement of a registered trade mark; or relating to any right in a registered trade mark; or for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. However, there is an exception to the said provisions. For the purpose of a suit for infringement of a registered trade mark or relating to any right in a registered trade mark, a "district Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 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. Therefore it appears that an additional jurisdiction is conferred and the plaintiffs for infringement of a trade mark and or relating to any right in a registered trade mark can file a suit in the District Court having the jurisdiction within the local limits of whose jurisdiction the said plaintiffs actually and voluntarily resides or carries on business and or personally works for gain. On fair and true reading of Section 134 (2) of the Act, it cannot be said that by providing the said additional jurisdiction the legislature has intended to take away the jurisdiction already conferred under the provisions of the Code of Civil Procedure or any other law. On considering sub-sec. On fair and true reading of Section 134 (2) of the Act, it cannot be said that by providing the said additional jurisdiction the legislature has intended to take away the jurisdiction already conferred under the provisions of the Code of Civil Procedure or any other law. On considering sub-sec. (2) of section 134 of the Act, it provides that for the aforesaid two reliefs, the District Court having jurisdiction shall include a District Court within the local limits of whose jurisdiction' at the time of institution of the suit or other proceedings, the person instituting the suit or proceeding, actually and voluntarily resides or carries on business or personally works for gain. Therefore the District Court within the local limits of whose jurisdiction the plaintiffs actually and voluntarily resides or carries on business and personally works for gain is also included. Sub-sec. (2) of Section 134 does not provide that the jurisdiction of the other courts having jurisdiction as per Section 20 of the CPC is excluded. Identical question came to be considered by the Hon'ble Supreme Court in the case of Exphar Sa and another ( AIR 2004 SC 1682 ) (supra), while considering similar provisions i. e. Section 62 (2) of the copyright Act, 1957, read with Section 20 of the CPC, and in paragraphs 11, 12 and 13 the hon'ble Supreme Court has held and observed as under: "11. The Division Bench has also erred in its construction of Section 62 of the Copyright Act, 1957. Section 62 reads: 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. "12. "12. We would like to emphasise the word "include". This shows that the jurisdiction for the purposes of Section 62 is wider than that of the court as prescribed under the Code of Civil Procedure, 1908. The relevant extract of the report of the Joint Committee published in the Gazette of India dated 23. 11. 1956 which preceded and laid the foundation for section 62 (2) said: "in the opinion of the Committee many authors are deterred from instituting infringement proceedings because the court in which such proceedings are to be instituted is situated at a considerable distance from the place of their ordinary residence. The Committee feels that this impediment should be removed and the new sub-clause (2) accordingly provides that infringement proceedings may be instituted in the District Court within the local limits of whose jurisdiction the person instituting the proceedings ordinarily resides, carries on business etc. " "13. It is, therefore, clear that the object and reason for the introduction of sub-section (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doing so. Section 62 (2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding, or where there are more than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a court over and above the "normal" grounds as laid down in Section 20 of the code. " ( 8 ) THEREFORE it cannot be said that the suit for infringement of a registered trade mark or relating to any right in a registered trade mark is required to be filed only in 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. Therefore it is held that a suit for infringement of a registered trade mark or relating to any right in a registered trade mark or even for infringement of copyright is maintainable in a District Court having jurisdiction where the cause of action as contemplated Section 20 of the CPC has arisen. ( 9 ) NOW the next question which is posed for consideration of this Court is, whether in a suit for action of passing off. the District court in whose territorial jurisdiction the goods are being sold by the defendants is maintainable or not. In other words, can it be said that the cause of action has arisen where the goods are being sold. In the case of Pam Pharmaceuticals (supra), the learned single Judge of this Court has held that for passing off action, the cause of action can be said to have been arisen where the defendants were selling the goods. In the case before the learned single judge where it was found that the cough drops "vicas" manufactured by the defendant No. 1 were being sold in Ahmedabad which was deceptively similar to that of the registered trade mark of the plaintiffs "vicks", the learned single Judge has held that the defendant No. 1 is selling "vicas" in Ahmedabad and therefore the City Civil Court at ahmedabad has jurisdiction to entertain the suit. In the said decision it is also held by the learned single Judge that the question with regard to jurisdiction cannot be gone into at this stage because the said question is to be decided only after recording the evidence and at this stage the Court is only to see that there is an averment with regard to jurisdiction in the plaint and the related documents. In support of the above finding the learned single Judge has considered the decision of the Hon'ble Supreme court in the case of P. M. Diesels Ltd. v. Patel field Marshal Industries reported in 198 PTC 18 (sic ). On considering the necessary averments in the plaint more particularly para 29 there are specific averments in the plaint that the defendants selling their goods within the city of Ahmedabad. It is to be noted that in the present case it is not disputed by the defendants that they are not selling the goods in the city of Ahmedabad. On considering the necessary averments in the plaint more particularly para 29 there are specific averments in the plaint that the defendants selling their goods within the city of Ahmedabad. It is to be noted that in the present case it is not disputed by the defendants that they are not selling the goods in the city of Ahmedabad. On the contrary, there is a specific finding by the learned Judge that the defendants are selling the goods within the city of Ahmedabad. However, as per the learned Judge, merely because the goods are being sold in Ahmedabad, it cannot be said that the cause of action has arisen within the city of Ahmedabad, such a finding cannot be accepted. For passing off action wherever the goods are being sold which are deceptively similar to that of plaintiff, that Court has jurisdiction to entertain the suit as it can be said that for passing off action, the cause of action has arisen within the territorial jurisdiction of that court where the goods are being sold. ( 10 ) NOW the submissions made on behalf of the defendant No. 1 relying upon the decision of the Hon'ble Supreme Court in the case of Dabur India Ltd. , (AIR 2003 SC 3123) (supra) that such a composite suit for infringement of trade mark, infringement of copyright and action for passing off is not maintainable is concerned, the said aspect is already considered by this Court in the recent decision in the case of Lark Laboratories Limited v. Nabros pharma Private Ltd. , rendered in Appeal From order No. 288 of 2007 with Civil Application no. 10760 of 2007 decided on 15. 12. 2008. Considering the decision of the Hon'ble Supreme Court in the case of Dabur India Ltd. , (AIR 2003 SC 3123) (supra), Dhodha House (AIR 2006 SC 730) (supra) and other decisions, this Court has held as under: "10. 1 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 Andhra Pradesh. 1 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 Andhra 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 andhra 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 reliefs 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. 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. " 10. 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. " 10. 2 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 (AIR 2006 sc 730) (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 (AIR 2006 SC 730) (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 Andhra 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 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. 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 not laid down absolute proposition of law that such a composite suit for the reliefs i. e. infringement of trademark, 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 trademark, 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 trademark, infringement of copyrights and passing off is not maintainable and therefore, the learned judge has committed an error in granting injunction cannot be accepted. " ( 11 ) THEREFORE, in view of the above, the contention on behalf of the defendants that such a composite suit is not maintainable and therefore the learned Judge has rightly returned the plaint to the plaintiffs cannot be accepted. As held by this Court, whenever such a composite suit is filed for infringement of trade mark, infringement of copyright and action for passing off, suit as a whole is not required to be dismissed. As held by this Court in the aforesaid decision, what is held by the Hon'ble supreme Court in the Dabur India Limited ( AIR 2008 SC 3123 ) (supra) is that under the guise of a composite suit, the Court would not have jurisdiction to entertain the suit for the relief for which that Court had no jurisdiction. As held by this Court in the aforesaid decision, what is held by the Hon'ble supreme Court in the Dabur India Limited ( AIR 2008 SC 3123 ) (supra) is that under the guise of a composite suit, the Court would not have jurisdiction to entertain the suit for the relief for which that Court had no jurisdiction. Under the circumstances, the contention on behalf of the defendants that such a composite suit is not maintainable and the same is required to be rejected as a whole cannot be accepted. ( 12 ) IN view of the above, the learned Chamber Judge has committed an error in disposing of the suit and returning the plaint to the plaintiffs for presentation it to the appropriate court having jurisdiction while holding that the city Civil Court at Ahmedabad had no jurisdiction, deserves to be quashed and set aside. At least for passing off action, the cause of action has arisen within the territorial jurisdiction of the City Civil Court at Ahmedabad as the goods are being sold in the City of ahmedabad, and therefore, the City Civil court at Ahmedabad would have jurisdiction to entertain the said suit for at least such relief. Therefore, the impugned order deserves to be quashed and set aside. ( 13 ) FOR the reasons stated above, the appeal from order succeeds. The impugned order dated 17. 10. 2008 passed by the learned chamber Judge, City Civil Court at ahmedabad passed below Exh. 25 in Civil suit No. 2058 of 2008 is hereby quashed and set aside. ( 14 ) IN view of the order in appeal from order, no further order is required to be passed in civil application. Appeal allowed. --- *** --- .