- 1 - 20.nms.1562.10 s.1529.10 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1562 OF 2010 IN SUIT NO.1529 OF 2010 Biostadt India Ltd. ..Plaintiff -Versus- Mahendra Pratap Makharia & Anr. ..Defendants .......... Mr.Virag Tulzapurkar, Senior Counsel a/w. Mr.Hiren Kamod, Ms.Aditi Kulkarni i/by Himanshu W. Kane for the Plaintiff. Mr.Munir Merchant for Defendant Nos.1 & 2. .......... CORAM : S.J. VAZIFDAR, J. DATE : 29TH JUNE 2011. P.C. 1 This is an action for infringement and passing off. The plaintiff is the registered proprietor of the word mark ‘BIOSTADT’. The mark has been registered under various classes including class 1. The plaintiff’s mark has been registered as early as in the year 1991. The plaintiff has been actually using the mark since then. - 2 - 20.nms.1562.10 s.1529.10 2 The defendants have admittedly used the mark only in the year 2007. The defendants made an application as a proposed user of the mark ‘MARGOSA BIOSTADT’ only on 18th January 2007. 3 The plaintiff has furnished the sales figures of its products sold under the said mark. The sale in the year 1991 were over Rs.1 crore. It increased throughout and in the year 2008-09 the sales were over Rs.17 crores. The expenses towards advertisement and promotional expenses have increased from over Rs.5 lakhs in the year 1991 to over Rs.12 lacs in the year 2008-09. The plaintiff has therefore established a case of infringement and passing off. 4 The use of the plaintiff’s mark ‘BIOSTADT’ in the defendant’s mark is clearly deceptive although the defendant’s mark is ‘MARGOSA BIOSTADT’. The word ‘BIOSTADT’ is also a prominent feature in the defendants’ word mark. 5 In the circumstances, the Notice of Motion is made absolute in terms of prayer clauses (a), (b) and (c). Prayer clause (c) shall be complied with on or before 31st December 2011. No order as to costs. -