LT Foods Limited v. Heritage Foods (India) Limited;
07.05.2014; FAO (OS) 3 of 2014 before the Division Bench of the Delhi High Court
The Appellant filed a suit seeking towards infringement and passing off of it’s trade mark HERITAGE. Respondent was a registered proprietor of the Trade Mark HERITAGE for the same goods. Therefore, the Single Judge observed that in terms of Section 28(3) of the Trade Marks Act, 1999 no suit for infringement would lie against the Respondent.
Only remedy available to the Plaintiff was the suit for passing off. In respect of the same, the Respondent filed an application under Order VII Rule 10 of CPC on the ground that as the Respondent does not sell it’s products in Delhi, no cause of action has arisen within the territorial jurisdiction of Delhi.
The jurisdiction claimed by the Plaintiff in it’s plaint was on the basis of the legal notice addressed to the Plaintiff by the Defendant. As per the Plaintiff, the Defendant had claimed in it’s legal notice that the Defendant sells it’s goods under the trade mark HERITAGE through the length and breath of the country and that would include the state of Delhi.
However, the said contention was negated by the Learned Single Judge and the plaint was directed to be returned.
The Plaintiff filed an RFA(OS) against the part of the order on Section 28(3), which was allowed by holding that one Registered proprietor can file suit against another Regd. Proprietor.
In the appeal against the order for return of plaint on passing off action, the Division Bench relied on Exphar S.A. v. Eupharma Laboratories Ltd. to hold that as per the legal notice of Respondent, the length and breath of the country would include Delhi and at this Prima Facie Stage, the Appellant has founded his cause of action on passing off on this admission on the part of the Respondent.
Therefore, on a prima facie stage the Division Bench held that the High Court of Delhi will have jurisdiction to entertain the suit.