Jurisdiction – Suit for declaration and permanent injunction of Trademark

The said submission of the plaintiff is merit-less due to the following reasons:-

• That the jurisdiction once seen in the light of Clause 4 (k) of the policy read with the paragraph of the compliant, there is clear indication that the compliant has submitted to the jurisdiction at the place of location of principal office of the Registrar of Trademarks in UP. It is also clear that the plaintiff itself approached the Noida Court and therefore the parties were ad idem that the Noida Court would have jurisdiction. It is already indicated that jurisdiction in such cases where there is an agreed forum the same is to be tested on the principle of contracts as the intention of the parties has to be seen as to what has been represented and what has been agreed to between agreed the parties.
• It is not feasible to impose any intention by finding out the meanings or reading into something which is not present in the clauses of the agreement and therefore once it is stated that the jurisdiction will vest in the court where the Principal office of the Registrar is situated and thereafter the name and at the place of situation of the registrar of Trademarks is mentioned as Uttar Pradesh, then for all practical reasons it is agreed to between the parties that Noida Court where principal office is situated would have jurisdiction and it is not proper to urge that principal office is situated somewhere else and therefore that court would also entertain the suit.

It is also clear from the documents filed by the defendants where under the defendant No. 2 has always represented before the domain registrar and internationally that its principal office is in Noida. The defendant has filed the documents wherein the resolutions are passed in Noida and annual reports are prepared in Noida. Thus, it cannot be ruled out that the principal office of the defendant No.2 may be situated in Noida as against the registered office. In any case, once it is represented by the defendant to be in Noida and thereafter agreed to in Noida by the plaintiff by filing objections of trademark against the award, it cannot be said the other way around by the plaintiff. It is well established principle of law that the jurisdiction in the cases where there are contracts are to be examined on the basis of applicability of maxim expression unius est exclusion alterius which means that expression of one is exclusion of other. The said maxim has been has been time again applied by the court in the cases where there is express mention of particulars in the agreement. In the words of the learned Single Judge, it was observed:- “Even without such words in appropriate cases the maxim “expression unius est exclusion alterius”- expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed’. Therefore, the learned single judge approved the observation of Hon’ble Supreme Court.

“In fact, the Supreme Court noted that even without such words, in appropriate cases, the maxim” expression unius est exclusion alterius “ – expression of one is the exclusion of another – may be applied. The jurisdiction clause in the present case clearly stipulates that the dispute between the parties in connection with the DPLAs shall be submitted to the competent courts of the Hague, the Netherlands. This is coupled with the proviso that in case the defendant No.1 is the plaintiff, it may at its sole discretion submit such a dispute either to the competent courts in the venue of the plaintiff’s registered office of trademark registration or to any of the competent courts in the venue of the plaintiff’s registered office or to any of the competent courts in the Territory as defined under the agreements”. Therefore the said maxim has been applied by learned single judge as well as by hon’ble Supreme Court in ABC Laminart. Thus once it is clearly and explicitly stated in the complaint that complainant would submit to the jurisdiction at the place where Principal Office of Registrar alongside the address at Uttar Pradesh, then Noida Court where principal office of the Defendant is situated would have jurisdiction by applicability of the said maxim. It can be inferred that all other cases relating to jurisdiction are implicitly excluded as the intention of the parties was clear at the submission to the jurisdiction. Therefore, it would be improper to find out the meaning of principal office and to impose or super impose any such intention upon the other party when the terms of the contract or clause in the policy themselves are clear and thus by virtue of applicability of the said maxim, it cannot be said that Delhi court would have jurisdiction.

Secondly, the plaintiff of trademark himself had approached the Noida Court while preferring the objections challenging the award dated 21^st February, 2008 passed by National Arbitration Forum and in the said objection petition invoked the jurisdiction on the basis of what has been agreed to by the complainant in the complaint. Once the plaintiff himself had approached the Noida Court on the basis of the same premise that the Noida Court would have jurisdiction due to the reason that the complainant has submitted to such court, then said very plaintiff is not allowed to approbate and reprobate at the same time. It is now well settled that the party may not be allowed to approbate and reprobate at the same time so as to suit its convenience to take one position when the order is passed to its benefit and to take altogether different position when the said order is passed to its detriment. The said solemn doctrine is applicable either in the same forum or even can be extended to the different forums if they are related to the same matter. Therefore, once the plaintiff of particular trademark himself has approached the Noida Court and thereafter withdrawn the said objection without any adjudication by the Noida Court that it does not have jurisdiction, plaintiff is estopped from urging to the contrary before this court. It is one thing to say that consent cannot confer jurisdiction which the court otherwise does not have. However, it is altogether different thing to say that a party cannot be permitted to retract from the agreed forum which would otherwise have jurisdiction as agreed in the covenant. The present case is falling within the purview the second part of the proposition wherein the plaintiff is estopped from retracting from the agreed forum which is Noida Court that would otherwise have jurisdiction under the Code of Civil Procedure also and which is also agreed within the policy as per the applicability of Clause 4(k) and the plaintiff cannot be permitted to retract from the said agreed forum by pleading to the contrary in order to suit his convenience and therefore the principle of approbate and reprobate shall be applicable to that limited extent.

The submission that principal office of trademark registration would be the place where Chief Executive Officer of the Company would sit and take decision. Even if that meaning is accepted, it is highly doubtful how Noida office cannot be called as principal office of the company. The documents in the present case would suggest that resolutions are passed from Noida office, notice for meetings were invited from Noida office and Annual reports are also prepared from Noida Office, thus it is highly doubtful as to how such definition unless it is specifically defined that principal office is equivalent to registered office of Trademark would aid the case of the plaintiff. Thus, the principal office can be the Noida office and in that event of the matter the said submission is merit less. From the above discussion, it is clear that Noida court has the jurisdiction as the same is expressly agreed forum by the complainant as per Clause 4(k) read with compliant filed by the complainant. This has been discerned and examined on the basis of clauses of policy.

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