M.M.S. Bedi, J. - (1.) DEFENDANTS have preferred this revision petition under Article 227 of the Constitution of India, aggrieved by order dated 18.8.2011, passed by the Additional District Judge, Karnal, dismissing the application of defendant -petitioner No. 1, under order 7 Rule 11 CPC, for rejecting the suit of the plaintiff -respondent for want of territorial jurisdiction. Compendiously and concisely, the relevant facts absolutely necessary for the adjudication of the present revision petition are that the plaintiff -respondent as proprietors of M/s. Zee Laboratory, Uchani, G.T. Karnal road, Haryana, filed a suit under Section 27(2) read with Section 134 & 135 of the Trade Marks Act, 1999 and Sections 51 & 55 of the Copy Rights Act, 1957 for a decree for permanent injunction restraining the defendants -petitioners from manufacturing and marketing, in any manner, pharmaceutical preparation under the drug mark OMEEZY, alleging that it amounts to passing of as plaintiffs trade mark "OMEZEE" and being deceptive in the matter to the trade mark of the plaintiff -respondent and similarity coverable under the imitation of trade mark of the plaintiff with the consequential relief of rendition of accounts regarding profits made by the trade mark OMEEZY. The plaintiff had claimed in the plaint that it was a sole proprietorship firm with name and style M/s. ZEE Laboratory and carrying of its manufacturing activities in Karnal and that the preparations of plaintiff -petitioner are sold extensively within India and abroad and are rightly relied upon as cost effective and relief giving preparations and its manufacturing facilities are duly certified as ISO 9001:2000 GMP.
(2.) THE plaintiffs claims that he had conceived and adopted the trade mark "OMEZEE" in respect of its Pharmaceutical preparations in April 2004 and the said trade mark is being used to manufacture a drug since the month of April 2004 under valid and subsisting licence issued under the provisions of Drugs and Cosmetics by the office of Director Controller Haryana Administration and the plaintiff was holding a drug licence issued by drug authority of Georgia since 10.8.2004. In view of the trade mark "OMEZEE" having acquired a unique reputation and valuable goodwill in the eyes of the medical profession, pharmaceutical industries and general public at large and the said goods are exclusively associated with the plaintiff. The plaintiff claims that he is extensive and prior user of trade mark "OMEZEE" whereas the defendant -petitioner No. 2 is manufacturing and defendant -petitioner No. 1 is marketing the similar products under the deceptive trade mark "OMEEZY" which is similar to the trade mark of the plaintiff with mala fide intention to infringe the trade mark of the plaintiff and to cause loss to the plaintiff and its reputation. The defendant -petitioner No. 2 has filed reply taking up the plea that the trade mark "OMEZEE" has been adopted on 20.11.2008 and the defendants are entitled to be protected under Section 12 of the Trade Marks Act and being honest concurring user of the trade mark "OMEZEE" capsules but the defendant -petitioner No. 1 filed an application seeking rejection of the plaintiff alleging that "OMEEZY" capsules is being manufactured in M/s. RH Laboratories Ponta Sahib, Himachal Pradesh and licence has been approved by office of Drug Licencing Authority, Drug controller Administration, Solan H.P. and the licence was marked for export only and in this regard approval letter of Drug Licencing Authority was relied upon claiming that the alleged capsules are being sold by defendant No. 1 at Georgia. Defendant No. 1 had taken up the plea in the application under Order VII Rule 11 CPC, that neither "OMEZEE" capsule is being manufactured at Karnal nor the same is being sold within the jurisdiction of the Court, As such, the plaintiff has got no cause of action and the Court does not have jurisdiction and as such, the plaint is liable to be rejected.
(3.) IT is a case of action for infringement of unregistered trade marks but Section 27(2) gives right of action to petitioner against any person for passing off goods as goods of another person.;