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In The High Court of Delhi at New Delhi
In The High Court of Delhi at New Delhi
+ CS(COMM) 455/2020
Versus
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
I.A. 102/2021
1. This is an application under Order 7 Rule 10 read with Order 7 Rule
11(a) and (d) CPC filed by the defendant seeking rejection of the
plaint/return of the plaint to be presented before a court of competent
jurisdiction.
2. The plaintiff has filed the accompanying suit seeking an order of
permanent injunction to restrain the defendant, its directors, etc. from
offering/providing healthcare services including pathology/diagnostic
services, etc. under the name/mark DR. REDDYS as part of its domain
name/website/trade name, etc. which amounts to infringement of the
plaintiff‟s trade name/mark DR.REDDY‟S which is a registered mark in
OUR SERVICES:
Biochemistry
Microbiology
Clinical Pathology
Histopathology
Molecular Biology &
Radiology samples
Corporate Overview
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33. That this Hon'ble Court has jurisdiction to entertain and try
the present suit under Section 134 of the Trade Marks Act, 1999
as the Plaintiff has its corporate office situated at NH-2, 2nd
Floor, C Block, Community Centre, Naraina Vihar, Delhi-
12. Hence, as per the plaint, the defendant is carrying on its business
throughout the country. It is also claimed that the defendant has appointed
various franchisees in various parts of the country. The aforesaid portion of
the website itself states that it can carry out necessary tests from samples
flown from all locations across India. Based on the above, it is urged in the
plaint that this court has territorial jurisdiction in view of Section 20 CPC as
a part of the cause of action has arisen within the territory of this court.
13. Reference may be had to Section 20 CPC. The same reads as
..........
14. In this context reference may also be had to the judgment of the
Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P.
Agencies, Salem, (1989) 2 SCC 163 where the Court on Section 20 CPC
held as follows:-
“12. A cause of action means every fact, which if traversed, it
would be necessary for the plaintiff to prove in order to support
his right to a judgment of the court. In other words, it is a bundle
of facts which taken with the law applicable to them gives the
plaintiff a right to relief against the defendant. It must include
some act done by the defendant since in the absence of such an
act no cause of action can possibly accrue. It is not limited to the
actual infringement of the right sued on but includes all the
material facts on which it is founded. It does not comprise
evidence necessary to prove such facts, but every fact necessary
for the plaintiff to prove to enable him to obtain a decree.
Everything which if not proved would give the defendant a right
to immediate judgment must be part of the cause of action. But it
has no relation whatever to the defence which may be set up by
the defendant nor does it depend upon the character of the relief
prayed for by the plaintiff.
15. The question would come: Whether facts of this case, at this stage,
warrant rejection of the plaint on the ground of lack of territorial jurisdiction
of this court?
16. Reference in this context may be had to the judgment relied upon by
the learned counsel for the defendants in the case of Banyan Tree Holding
(P) Ltd. vs. A. Murali Krishna Reddy & Anr.(supra). That was a case in
which the plaintiff stated that the defendants have advertised their products
on their website. According to the plaintiff therein, the defendants solicit
their business through use of the impugned mark “BANYAN TREE
RETREAT” and the "Banyan" device mark in Delhi. It was alleged in that
case that the defendants had presence in Delhi through their website which
was accessible in Delhi. It was further stated that the website was not a
passive website. It not only provided contact information but also sought
feedback and inputs from its customers through an interactive web-page.
2. Whether the court can entertain the present suit, in the absence
of a long arm statute, having regard to the existing state of law,
particularly Section 20, CPC, and the impact, if, any of the
Information Technology Act, 2009 on it;
xxx
46. It may be recalled that the Plaintiff has to show that a part
of the cause of action in a suit for passing off or infringement has
arisen within the jurisdiction of the forum court. Relevant to this,
it would have to be shown by the Plaintiff that the Defendant
“availed” of the jurisdiction of the forum court by commercially
transacting with a viewer located in the forum state through the
internet. The question is whether this transaction can be a trap
transaction‟ that is engineered by the Plaintiff itself, particularly
when it is not otherwise shown that the Defendant intended to
specifically target customers in the forum state.
xxx
57. Reverting to the present case, the position that emerges
from the above judicial decisions is that while in trade mark and
infringement cases, trap orders or trap transactions may be used
as evidence, the fairness of such transactions is a relevant factor
to be considered. Other relevant factors would be the nature of
goods or services offered for purchase on the internet. If they
require the customer to further physically verify their quality then
the mere purchase of such goods through a trap transaction may
not be treated as being sufficient evidence of infringement. The
facts of each case will determine whether the trap transaction is a
fair one and has resulted in a purchase on the internet of goods or
Summary
xxx
18. The reliance of the learned counsel for the defendant on the above
judgment of the Division Bench of this court in case of Banyan Tree
Holding (P) Ltd. vs. A. Murali Krishna Reddy & Anr.,(supra) is misplaced.
In this case, there are no trap transactions. As per the plaint and the website
of the defendant, the defendant is offering its services throughout the
country including in Delhi. What the defendant, as per the plaint, is offering
is physical services in Delhi, namely, collection of samples which will then
be flown over to the location of the laboratory of the defendant. It is not an
internet based transaction that is being sought to be made. The plaint and the
accompanying documents are the only documents which have to be seen at
this stage. It is apparent that as per the plaint the services are being
physically offered in Delhi. A part of cause of action as per the plaint has
arisen within the territory of Delhi.
19. It is not possible to reach at a conclusion that no cause of action has
arisen within the territorial jurisdiction of this court at this stage. After the
parties have led their evidence that any final conclusion can be made.
20. There is clearly no merit in the present application and the same is
dismissed.
CS(COMM) 455/2020
List before the Joint Registrar on 22.11.2021 for further proceedings.
JAYANT NATH, J.
NOVEMBER 09, 2021/rb