- (1.) This first appeal has been filed by the plaintiff appellant against the order dated 18.9.2008 passed by the learned Additional District Judge rejecting the plaint of the plaintiff under Order VII, Rule 11 of the Code of Civil Procedure.
(2.) Facts in brief giving rise to this appeal are; the plaintiff obtained registration of trade mark "RAYBAN CABLES" on 7.3.1988 in respect of electric cables included in Class 9 under the provisions of Trade and Merchandise Marks Rules, 1959. The defendants claim carrying on business in the name and style of M/s Crystal Wire Industries and are manufacturing and marketing various types of electric wires and cables having its manufacturing units and office at 2/98 Ramandand Nagar, Allapur, Allahabad. The certificate was renewed on 7.3.2002 for next seven years. The plaintiff filed a suit being Original Suit No. 8 of 2005 in the Court of District Judge, Allahabad stating therein that defendants, who are manufacturing optical sun glasses under the trade name "RAYBAN" and manufacturing and marketing their product of optical sun glasses surreptitiously and in a clandestine manner taking the advantage of goodwill and repute of plaintiff. The plaintiff claimed to have given a notice dated 16.7.2003 to the defendants desisting them from manufacturing and marketing their sun glasses in the brand name "RAYBAN" which was replied on 21.1.2004 by the defendant. The plaintiff pleaded that to the knowledge of the plaintiff, the defendants are still continuing with the manufacturing of their optical sun glasses under the brand name 'RAYBAN' hence, they may be restrained from using the brand name 'RAYBAN' on their products. The plaintiff has prayed for grant of permanent injunction restraining the defendant from using the brand name of 'RAYBAN' on the product of optical sun glasses. The plaintiff has further prayed for award of damages/compensation. In the suit, the plaintiff filed an application on 28.7.2007 praying for an order of injunction directing the defendants to keep its account properly and to appoint a receiver or attach the property of the defendants. The defendants filed an application dated 31.10.2007 under Order VII, Rule 11 read with Section 151 Code of Civil Procedure praying for rejection of the plaint. In the application it was stated by the defendants that neither any cause of action has accrued in favour of the plaintiff nor any cause of action has been disclosed in the suit hence, the plaint be rejected under Order VII, Rule 11 Code of Civil Procedure. Defendants had already filed a written statement in the suit in the year 2005 itself. On the application filed by the defendants under Order VII, Rule 11 Code of Civil Procedure (45-C), an objection was filed by the plaintiff (50-C). Defendant filed rejoinder (53-C) controverting the objection of the plaintiff. Trial court heard learned counsel for the parties and by order dated 18.9.2008 allowed the application 45-C and rejected the plaint under Order VII, Rule 11 Code of Civil Procedure. This first appeal has been filed against the said order.
(3.) In the impugned order, the learned Additional District Judge has held that trade mark "RAYBAN CABLES" got registered by the plaintiff is only in respect of electric cables included in Class 9, whereas the defendants are dealing in optical glasses with brand name "RAYBAN". It has been held that there was no question of infringement of trade mark right in respect of electrical goods as the defendants are dealing with Optical sun glasses. Both the aforesaid goods having dealing in different spheres, neither there is any conflict nor there is confusion in the public mind. The trial court held that no cause of action is made out on the plain reading of the plaint hence, the plaint deserves to be rejected under Order VII, Rule 11 of the Code of Civil Procedure.;