- 1 - 9.s.1181.05 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1181 OF 2005 USV Limited ..Plaintiff -Versus- MDC Pharmaceuticals (P) Limited ..Defendant .......... Mr.Vikhil Dhokha i/b M/s.Bharat Shah for the Plaintiff. None for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 26TH AUGUST 2011. P.C. 1 This is an action for infringement and for passing off. 2 The plaintiff is the registered proprietor of the word mark ‘CARDIMAX’ under class 05. The defendants have used a mark ‘CARTIMAX’ The deceptive similarity between the two marks is patent. The substitution of the letter ‘D’ with the letter ‘T’ makes no difference to the fact that the two marks are, both visually and phonetically, almost identical to the plaintiff’s mark. 3 The sales figures annexed at Exhibit ‘C’ to the plaint establishes the plaintiff’s goodwill and reputation in the mark. The sales of the plaintiff’s - 2 - 9.s.1181.05 products under the said mark increased from Rs.86,27,000/- in the year 1998-99 to Rs.3,21,62,000/- in the year 2003-04. The promotional expenses also increased during the corresponding years from Rs. 11,58,000/- to Rs.32,48,000/-. 4 There is nothing on record that militates against the plaintiff’s claim. The defendants have been absent throughout. 5 The plaintiff has claimed damages of Rs.1 lac. The defendant, as stated above, has failed to appear. I am inclined therefore, to draw an adverse inference against the defendant for not having remained present and not filing the written statement to the effect that they have remained absent knowing that their records would indicate that the plaintiff have suffered damages in excess of what is claimed. 4 In the circumstances, the suit is decreed in terms of prayers (a), (b) and (c). Prayer (c) shall be complied with after twelve weeks of the defendant being served with a copy of this order and judgment. The suit is also decreed in terms of prayer (f). Costs to be quantified as per rules. Refund of court fees, if any, as per rules. -