JUDGMENT : T. RAVINDRAN, J. 1. Suit for permanent injunction, direction and rendition of accounts. 2. The averments contained in the plaint are briefly stated as follows: The plaintiff is engaged in the business of manufacturing and trading of Beedies and tobacco and carrying on the business for the past 37 years and the plaintiff has established itself and its identity in the Beedi Market and during the course of its business in order to distinguish its goods from others in the same trade the plaintiff adopted the trademark of No. 10 A.S. Photo Beedies and over the years, by its sheer high quality and reliability and goodwill earned by the plaintiff in the course of its business, the plaintiff has grown into one of the leading manufacturers and marketers in Beedies. The trademark of the plaintiff is basically a logo/label with distinguishing features and the trademark in the bundle wrapper label consists of the words and numbers written on top of the label in large bold capital letters and below these letters is a photo of a small boy upto chest with shirt and tie and below the photo, the name of A.S. Hameed, who is the proprietor is written in bold letters within lines in blue background. Below the name is the name of the concern No. 10 A.S. Photo Beedi Company, Coimbatore, is written in red capital letters. On either side of the proprietor's name his signature is printed in black and green ink and on both sides of the photo of the boy, there is a border line in red colour with distinct marking and on either side of the red line, stalk of leafs in green colour is printed. In the centre over the leaves number 10 is depicted in white colour over the blue background within a design. Above the same, the letters Trademark with registration number 1458480 is found. The above said details are made within a design with the bright yellow base colour which is found within a square with blue base colour. Above the name of the concern written on all four sides, top in Tamil, bottom in English, and on the left side is in Hindi and on the right side in Malayalam. The above said details are made within a design with the bright yellow base colour which is found within a square with blue base colour. Above the name of the concern written on all four sides, top in Tamil, bottom in English, and on the left side is in Hindi and on the right side in Malayalam. The four corners have a circle with white and yellow background in the centre of the four circles the No. 10 is written in white colour on the dark blue background within a design. The border for the entire label is in light green and yellow colours. On the two sides of the bundle is the letters ASP written on both sides of No. 10 within a design and many colours. In No. 10 red stripes are made in the lower portion of the number and on the left side of the bundle, the name is written in Malayalam and Tamil with No. 10 within a border in green and yellow colour and in the centre, the base colour is yellow and outside the design and within the border consisting of three colours there are red small lines surrounding the name. On the back side of the wrapper bundle is a similar label showing about 10 Beedies within a circle with blue colour. This as a whole is the trademark of the plaintiff. In the wrapper bundle, there are many packets/kattu of beedies and the small packets called kattus of beedies also has the same label patterns except with slight changes as detailed. 3. The plaintiffs have honestly adopted the mark and have put in enormous amount of hard work and labour and invested huge sums of money for advertisement and sales promotional expenses. Because of the efforts made by the plaintiffs, the trade and the public, associate the mark with the plaintiffs and none else. The plaintiff has also registered the beedi kattu and bundle wrappers under the Copy Right Act bearing No. A17430/77. The thread used in beedi by the plaintiff is rose in colour and the defendant also uses rose colour. In retail sales, the consumers are misled and it affects the plaintiffs' sales and market. The plaintiff has also registered the beedi kattu and bundle wrappers under the Copy Right Act bearing No. A17430/77. The thread used in beedi by the plaintiff is rose in colour and the defendant also uses rose colour. In retail sales, the consumers are misled and it affects the plaintiffs' sales and market. The plaintiff in view of protecting its intellectual property, particularly with respect to its trade mark applied for the registration of this label as their trademark and therefore, made an application on 01.06.2006 in Class 34. Registrar of trademarks accepted the application and the same was advertised in trademarks Journal dated 16.04.2008 and after the statutory period, the Registry granted the registration for the mark No. 10 A.S. Photo Beedi label. The trademark Number is 1458480 - class 34 and the same was registered on 1.06.2006 and the registration is valid upto 01.06.2016. The certificate number is 752895 and it was issued on 13.09.2008. The plaintiff has become exclusive registered owner of this mark and no one else apart from the plaintiff has the right to use this mark, if anyone uses this mark or similar trade mark without the prior permission of the plaintiff, then the same will amount to passing off and infringement. Due to the efforts of the plaintiff, its turn over in the market has been growing at a impressive rate and the plaintiff has also incurred expenses in advertising its products. The plaintiff's popularity and demand had been steadily increasing since the inception of its business in the year 1975. The trademark is associated with none other than the plaintiff. While so the plaintiff came across the defendant goods namely No. 10 AS & Photo Beedies available in the market in a deceptively similar manner having same colour scheme, get up, identical trademark words and letters and the same is a blatant infringement of the plaintiff's registered trademark. The two are visually and phonetically similar and it is a conscious copy. Hence, the adoption of the impugned mark is dishonest and solely on the object of exploiting the commercial goodwill attached to the plaintiff's registered trade mark. The copy of the original is so deceptively similar that not only a layman but anyone would be easily mislead into buying the deceptive product instead of the plaintiff's product. Thus, the defendant is consciously infringing registered trade mark. The copy of the original is so deceptively similar that not only a layman but anyone would be easily mislead into buying the deceptive product instead of the plaintiff's product. Thus, the defendant is consciously infringing registered trade mark. The defendant's product is inferior in quality and substanding and if one was not careful enough to note the physical features of the wrapper on the plaintiff's goods will undoubtedly mistake the defendant's wrapper for the plaintiff if shown to him some time after the consumer had seen the plaintiff's. The defendant is using the deceptively similar trade mark of the plaintiff to market its goods in the market. Thus, the defendant is guilty of infringement of the plaintiff's registered trademark. The defendant's acts are dishonest and motivated and the defendant should not be allowed to malign and dilute the goodwill and reputation enjoyed by the plaintiff. The defendant being well aware of the goodwill and reputation of the plaintiff's trademark sold its product through the same trade channels and hence, the conduct of the defendant amounts to falsification of the trademark an offence punishable under the Trademark Act and hence, the plaintiff has been necessitated to lay the suit for appropriate reliefs. 4. The averments contained in the written statement are briefly stated as follows: The defendant denies all the averments contained in the plaint and put the plaintiff to strict proof of the same. The defendant has registered his proprietorship in the name of No. 10 A.S. & Photo Beedies and having registered office at no. 7861, 4th south cross, Ghousia Nagar, 1st stage, Mysore and running the business in the state of Karnataka. The plaintiff was manufacturing the beedies at Tirunelveli and Coimbatore. But, the defendant was manufacturing the beedies at Mysuru. There is a big difference of the photo of the small boy. The Trade mark of the plaintiff front wrapper contains namely A.S. Hameed. But, the wrapper of the defendant contains namely A.S.Ahmed. The logo are different and the left side of the logo of the plaintiff contains name Trade and below it contains REGD.No. and the right side of the logo of the plaintiff contains MARK and below it contains 1458480. The Trade mark of the plaintiff front wrapper contains namely A.S. Hameed. But, the wrapper of the defendant contains namely A.S.Ahmed. The logo are different and the left side of the logo of the plaintiff contains name Trade and below it contains REGD.No. and the right side of the logo of the plaintiff contains MARK and below it contains 1458480. But the left side of the logo of the defendant contains the name TRADE and below it contains AILPB and the right side of the logo of the defendant contains MARK and below it contains 1852G. The right side of the beedi bundle of the defendant contains the sentence "statutory warning: smoking is injurious to health." The right side corner of the beedi bundle of the plaintiff contains the words in Malayalam. The right side corner of the beedi bundle of the defendant contains the words in Kannada. Below the logo of the plaintiff's beedi bundle contains as No. 10 A.S. Photo beedi Company, Coimbatore. But the logo of the defendant's beedi bundle contains No. 10 A.S. & Photo Beedies, Mysuru. The left side of the bottom of the beedi bundle of the defendant contains Mkd by No-10, A.S. & Photo beedies, No. 13, I cross stage, Rajendra nagar, Mysore 57 and the right side of the bottom of the beedi bundle of the defendant contains MFS: Ahmedulla Baig cEx. R.C. No. AILPB 1852GXM002 Div, MYS CITY 04. The right side of the bottom of the beedi bundle of the defendant contains MFS: A. Abdul Kareem c.Ex. R.C. No. ACBPA 4630 M XM 001 Tirunelveli - 5. Hence, the trade mark of the plaintiff and the defendant are totally different from one another and the suit laid by the plaintiff is not maintainable. The logo of the beedi bundle of the plaintiff contains as No. 10 A.S. Photo Beedi Company, Coimbatore. The plaintiff has not registered his company under the Companies Act, 1956 and not stated in the plaint that whether the plaintiff is running a company or proprietorship firm. Hence, the suit is liable to be dismissed on the above ground. There is no cause of action and hence, the suit is liable to be dismissed. 5. On the basis of the above pleadings, following issues are framed for determination: 1. Hence, the suit is liable to be dismissed on the above ground. There is no cause of action and hence, the suit is liable to be dismissed. 5. On the basis of the above pleadings, following issues are framed for determination: 1. Whether the defendant goods (Beedies) are deceptively similar like the plaintiff goods (Beedies) having same clolour scheme, get up, identical Trade Mark words and letters? 2. Whether the products of Plaintiff and Defendant are visually and phonetically similar? 3. Whether the purchasers can be mislead into buying the deceptive product instead of the plaintiff's product? 4. Whether the Defendant's product is a blatant imitation of the plaintiff's label? 5. Whether the conduct of the defendant amounts to falsification of Trade Mark and offence punishable under Trade Mark Act, 1999? 6. Whether the plaintiff is entitled for permanent injunction? 7. Whether the defendant is liable to surrender all the packing materials, cartons, advertisement materials and items of the defendant? 8. Whether the defendant has rendered an accounts of profit for use of impugned Trade Mark? 9. Whether the Trade Mark of the plaintiff and defendants are totally different from one another? 10. Whether the defendant goods are sold only in Karnataka? 11. Whether the plaintiff is entitled for damages as prayed for? 12. To what relief does the plaintiff is entitled for? 6. In support of the plaintiff's case, PW-1 has been examined and Exs.P1 to P5 have been marked. On the side of the case of the defendant, DW-1 has been examined and Ex.D1 has been marked. Issue Nos. 1 to 4 and 9 7. The suit is laid by the plaintiff for infringement and passing off his goods by the defendant using the trademark similar to that of the plaintiff trade mark in the business of the beedies. It is seen that the plaintiff has adopted the trademark No. 10, A.S. Photo beedies. Issue Nos. 1 to 4 and 9 7. The suit is laid by the plaintiff for infringement and passing off his goods by the defendant using the trademark similar to that of the plaintiff trade mark in the business of the beedies. It is seen that the plaintiff has adopted the trademark No. 10, A.S. Photo beedies. According to the plaintiff, the defendant by using the trademark No. 10, A.S. & Photo beedies similar to that of the plaintiff trademark has infringed the trademark of the plaintiff and thereby, affected the plaintiff's business, and inasmuch as the trademark employed by the plaintiff and the defendant are visually and phonetically similar and both have the same colour scheme, get up, identity of both in words and letters, according to the plaintiff, common man would be deceived thereby and in such view of the matter, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 8. Per contra, it is the case of the defendant that the trademark employed by him is not similar to that of the plaintiff as put forth by the plaintiff and there are various features in the trademark used by him, which would go to show that two trademarks are not connected with each other in any manner and the public would not be deceived by the two trademarks as similar and therefore, according to the defendant, the plaintiff is not entitled to obtain the reliefs sought for. 9. The trademark of the plaintiff is shown as No. 10 A.S. Photo Beedies, whereas the trademark of the defendant is in the name of No. 10, A.S. & Photo Beedies. In this connection, photo copy of the label of the trademark of the plaintiff is marked as Ex.P4 and the photo copy of the label of the trademark of the defendant is marked as Ex.P5. On a perusal of both trademarks on the label, it is found that the face of the boy, colour scheme are completely different and no nexus with each other. It is found that the defendant is using the trademark for engaging business of beedis at Mysuru, in the state of Karnataka, whereas, the plaintiff is engaged in the business of beedi in the state of Tamil Nadu, particularly, at Coimbatore region. It is found that the defendant is using the trademark for engaging business of beedis at Mysuru, in the state of Karnataka, whereas, the plaintiff is engaged in the business of beedi in the state of Tamil Nadu, particularly, at Coimbatore region. On the face of two trademarks as seen from the Exs.P4 & 5, as rightly contended by the defendant, the size of the photo of the boy in the trademark is different and also the other features below the face of the boy. In the trademark of the plaintiff, the name of the plaintiff A.S. Hameed is mentioned, whereas in the trademark of the defendant, below the face of the boy, it contains A.S. Ahmed. Further, the logo of the wrapper of the defendant and the plaintiff are also seem to be different. In the logo of the wrapper of the plaintiff, on the left side, the word Trade and on the right side, it contains the word Mark and below it contains 1458480. Therefore, the above aspect is also found to be completely distinct and explicit, whereas, on the left side of the logo of the trademark of the defendant contains the word Trade and below it contains AILPB and on the right side of the logo of the defendant contains Mark and below it contains 1852G, such features are not in the label of the plaintiff's trademark. Further, on the right side of the beedi bundle of the defendant contains the sentence (Statutory Warning: Smoking is injurious to Health). The right side corner of the beedi bundle of the plaintiff contains the words which are said to be in Malaiyalam, whereas, on the right side corner of the beedi bundle of the defendant contains the words, which are said to be in Kannada. That apart, below the logo, the address of the plaintiff is given as Coimbatore, but below the defendant's logo, it is specifically stated as No. 10 A.S. & photo beedis, Mysuru. Further, as rightly contended by the defendant and as seen in Ex.P5, the left side of the bottom of the beedi bundle contains manufactured by No. 10 A.S. & photo beedies, 13, I Cross Stage, Rajendra Nagar, Mysore - 57, whereas, such description is not found in the plaintiff's label. The right side of the beedi bundle of the defendant contains manufactures - Ahmedulla Baig c.Ex. The right side of the beedi bundle of the defendant contains manufactures - Ahmedulla Baig c.Ex. R.C. No. AILPB 1852G XM002 Div, MYS CITY 04 such description is not found in the label of the plaintiff. 10. In the light of the above position, when it is found that striking features of the label of the plaintiff and the defendant are totally different from one another and when the label of the plaintiff and the defendant even in a miniature form would not affect common public particularly noting the distinction in the face of the boy and other features as discussed above, it is found that the case of the plaintiff that the common man can be deceived by the two labels, as such cannot be accepted straight away. 11. That apart, it is also admitted by PW-1 examined on the side of the plaintiff that no document has been filed to show that the defendant is selling his products in Tamil Nadu. Further, PW-1 has also admitted that in their label the name A.S. Hameed is mentioned and in the defendant's label, it is mentioned as A.S. Ahmed and also admitted that there is a statutory warning in the label of the defendant but not found in the plaintiff's products. That apart, it has been categorically admitted by PW1 that it is correct to state that the boy picture in the label of the defendant's products is different from their products and PW-1 has also admitted that no document is filed to show that the plaintiff sustained damages on account of the defendant's trademark and it is also admitted by PW-1 that no notice has been sent to the defendant prior to the institution to the suit. 12. 12. In view of the above, when it is found that the features of the plaintiff's trademark and the defendant trademark are not similar to each other and there are striking different features, not connected with one another as stated above and when it is also found that the defendant is not carrying on business in Tamil Nadu as such and further when it is also noted that no document has been placed by the plaintiff to show that he is carrying on the business of beedies using his trademark as such by placing any material, the case of the plaintiff that the defendant has committed infringement of his trademark etc as such cannot be accepted. Accordingly, issue Nos. 1 to 4 and 9 are answered against the plaintiff. Issue No. 5 to 8 and 11 13. In the light of the answers given to issues 1 to 4 and 9, I hold that the conduct of the defendant does not amount to falsification of the trademark and an offence punishable under the Trade Marks Act, 1999. Consequently, I hold that the plaintiff is not entitled to the reliefs of permanent injunction, direction and rendition of accounts and damages as claimed in the plaint and accordingly, Issues 5 to 8 and 11 are answered against the plaintiff. Issue 10 14. It is the specific case of the defendant that he is selling goods only in the State of Karnataka. Admittedly, the defendant's place of business even as per the plaint, it is shown only at Karnataka. As seen above, PW-1 has admitted that no document has been filed to show that the defendant is doing business only in Tamil Nadu. In such view of the matter, it is found that the defendant is selling their products only in Karnataka. Accordingly, issue No. 10 is answered. Issue No. 12. 15. During the course of cross examination of PW-1, suggestion had been put to him that this Court has no territorial jurisdiction to entertain the suit. However, no specific plea, as such, has been made in the written statement. Accordingly, issue No. 10 is answered. Issue No. 12. 15. During the course of cross examination of PW-1, suggestion had been put to him that this Court has no territorial jurisdiction to entertain the suit. However, no specific plea, as such, has been made in the written statement. Be that as it may, when it is found that no material has been placed by the plaintiff to show that he has any cause of action to institute the suit at Chennai i.e. in the High Court of Madras and when it is admitted by PW-1 that the plaintiff is engaged in the business only at Coimbatore and the defendant is engaged in the business at Karnataka, the plaintiff having come forward with the case of infringement of trademark and passing of, has to establish among other things that he is entitled to maintain the suit in the High Court of Madras. 16. In this connection, the defendant s counsel straight away relied upon the decision of a Full Bench of Madras High Court, reported in Duro Flex Pvt. Limited, Represented by its Managing Director, Mr. George L. Mathew, PB 3808, Chung Om, Alleppey - 688 011, Kerala, having Office/Depot at 235-A, Anna Salai, Teynampet, Chennai vs. Duroflex Sitting System, 150, MG Road, Radiant House Near Pulgate Police Chowky, Pune - 411 011, Sadar Bazaar, Delhi and Another, 2014 (6) CTC 577 . 17. The counsel for the plaintiff contended that no contra evidence as such has been projected by the defendant in support of his defence and in such view of the matter, it is argued that the plaintiff's case should be accepted. No doubt, no contra evidence is adduced on the part of the defendant. But, the plaintiff having come forward with the suit, has to fall or stand on the strength of his own case. The plaintiff cannot be allowed to pick holes or take advantage of the lacuna in the defendant's case or the absence of oral or documentary evidence on the part of the defendant as such, to sustain the reliefs sought for, particularly, when no acceptable material has been placed by the plaintiff to claim the reliefs as such. The plaintiff cannot be allowed to pick holes or take advantage of the lacuna in the defendant's case or the absence of oral or documentary evidence on the part of the defendant as such, to sustain the reliefs sought for, particularly, when no acceptable material has been placed by the plaintiff to claim the reliefs as such. Therefore, the failure of the defendant to adduce evidence in support of his defence as such would not automatically lead to the conclusion that the plaintiff is entitled to obtain the reliefs sought for sans any acceptable proof. 18. Accordingly, I hold that in the light of the above said Full Bench decision mere registration of the trademark of the plaintiff at Chennai would not give rise to a cause of action to the plaintiff to institute the suit at Chennai. Accordingly, I hold that this Court has no jurisdiction to entertain the suit and accordingly, in the light of the answers given to issues 1 to 11, I hold that the plaintiff is not entitled to obtain the reliefs sought for. Resultantly, the suit is dismissed with costs.