- 1 - 6.s.13.2005 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.13 OF 2005 Collinz Laboraties Ltd. ..Plaintiff -Versus- Micro Nova Pharmaceuticals Ltd. ..Defendant .......... Mr.Ramesh Gajaria i/b Gajaria & Co. for the Plaintiff. Ms.Shilpa Kamble i/b Shukla & Shukla for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 17TH 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 ‘PANTOPLEX’ under class-5. The defendant has used the mark ‘PANTOFLUX’. 3 The sales figures furnished in paragraph 5 establishes the plaintiff’s goodwill and reputation in the said mark. The sales of the plaintiff's products in the year 1990-91 were Rs.12.22 lacs. The sale increased over the years. In the year 2002-03, the sales were increased to Rs.257.37 - 2 - 6.s.13.2005 lacs. The promotional expenses also increased during the corresponding period from less than Rs.1 lac to 3.88 lacs. The plaintiff has established its reputation and goodwill in the mark. There is nothing on record that militates against the averments and submissions made in the plaint. I am inclined to accept the same. 3 The defendant has failed to file a written statement. It is true that the plaint was amended. The amendment was only a formal one in view of the amalgamation between the original plaintiff and the present plaintiff. In the circumstances, I rejected time to file a written statement in view of the delay. The learned counsel appearing on behalf of the defendant states that she was unable to contact the defendant. 4 The two marks are deceptively similar. Indeed they are almost identical. The plaintiff’s products sold under the said mark are for maintenance of pregnancy whereas the defendant’s products sold under the impugned mark are to cure hyper-acidity. The consequences of confusing one for the other are disastrous. 5 The plaintiffs have claimed damages of Rs.51,000/-. The defendant has failed to file any appearance. I am inclined therefore, to draw an - 3 - 6.s.13.2005 adverse inference against the defendants 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 plaintiffs have suffered damages in excess of what is claimed. 5 In the circumstances, the suit is decreed in terms of prayers (a), (b), (c), (d) and (i). Costs to be quantified as per rules. Prayer (d) however, shall be implemented only after the expiry of a period of eight weeks after the period of limitation for filing the appeal against this order expires. Refund of court fees, if any, as per rules. -