- 1 - 9.s.647.04 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.647 OF 2004 WITH CHAMBER ORDER (L) NO. 230 OF 2009 IN SUIT NO.647 OF 2004 ITC Ltd. ..Plaintiff -Versus- Kaku Foods & Ors. ..Defendants .......... Ms.Tanmayi Gadre a/w. Ms.Vijayalaxmi Kulkarni, Anup Lahoti i/b M/s.Nanu Hormasjee & Co. for the Plaintiff. None for the Defendants. .......... CORAM : S.J. VAZIFDAR, J. DATE : 10TH AUGUST 2011. P.C. 1 This is action for infringement of copyright and for passing off. 2 The plaintiff is the registered proprietor of the word mark ‘MINT-O’. The defendants have used the identical mark in a prominent manner on its wrappers/packaging materials. 3 The defendants are absent. There is no written statement. There is nothing on record that militates against the averments and submissions made in the plaint. - 2 - 9.s.647.04 4 The plaintiff is the assignee of the said mark. The plaintiff’s predecessor have been using the mark since the year 1989. Even after the assignment, the sales of the plaintiff’s products using the said mark were substantial. In the financial year commencing from 31st March 2003, the sales were of an aggregate value of Rs.1569.61 lacs. For the period of 1st March 2003 to 30th November 2003, the sales were of the aggregate value of Rs.791.46 lacs. I mentioned the aggregate value as the mark has been used in conjunction with the words red, orange and lemon and they are separate marks. However, the dominant word in each of the mark is the word ‘MINT-O’. The plaintiff has, therefore, established its reputation and goodwill in respect of the said mark. 5 As stated above, the defendants have used identical mark. Though the defendants have above the mark added the words ‘BOOGIE WOOGIE’, it makes no difference whatsoever. These words are above the word ‘MINT-O’ and they are separated in space and are in a different colour. The font is also different. The defendants have also infringed the plaintiff’s copyright. The defendants have slavishly copied the plaintiff's artistic work comprising of an orange and yellow background with the word ‘MINT-O’ written in a stylized manner. The defendants have also written the word in an identical manner. - 3 - 9.s.647.04 6 In the circumstances, the suit is decreed in terms of prayers (a), (b), (c), (d) and (j). The costs to be quantified as per rules. The Court Receiver appointed in the interlocutory proceedings shall continue as a Receiver in execution. The Court Receiver shall implement prayer (d) but only after the expiry of a period of eight weeks after the period of limitation for filing an appeal against this judgment and order. Upon prayer (d) being complied with, the Court Receiver shall stand discharged without passing any accounts but subject to payment of his costs, charges and expenses. -