- 1 - 2.s.97.2005 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.97 OF 2005 Proctor & Gamble Hygiene & Health Care Ltd. & Anr. ..Plaintiffs -Versus- New Wishpar Hygiene & Healthcare ..Defendant .......... Mr.Nishad Nadkarni i/b Legasis Partners for the Plaintiffs. None for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 12TH AUGUST 2011. P.C. 1 This is an action for infringement of trade mark and copyright and for passing off. 2 The defendant is absent. There is no written statement. The defendant was also absent when the ad-interim and interim orders were passed. 3 The plaintiffs are the registered proprietors of the word mark ‘WHISPER’ under class-5. The plaintiffs are also the registered proprietor - 2 - 2.s.97.2005 of the label mark wherein the word ‘WHISPER’ forms a dominant part. The plaintiffs are also the registered proprietors of a devise mark comprising of a dancing lady logo against an oval background. Two further marks are also registered in variations of the devise of the dancing lady. 4 The defendant has used the word ‘WISHPAR’. The phonetic and visual similarity between the two marks is strikingly similar and needs no elaboration. There is nothing on record that militates against what is stated in the plaint. The sales figures and promotional expenses have been furnished. For instance, in the year 2002-2003 the sales of the plaintiffs’ products under the said mark were of the value of Rs.146 crores and in the subsequent year increased to Rs.162 crores. The promotional expenses during the corresponding years increased from Rs.20 crores to 22 crores. 5 The plaintiffs have, therefore, established a case for infringement and passing off. 6 The defendant has slavishly imitated the plaintiffs’ label. The essential features of the artistic works are the use of the word mark prominently in the centre of the packets of the works. Above the same are red and blue strips in the shape of the cutlass. Below the mark, in the - 3 - 2.s.97.2005 plaintiffs’ work is the word ‘ULTRA’ in a red band. The defendant has copied the same devise. The only difference being that the defendant has used the word ‘ALTRA’. Below that red band is another blue and red stripe. There is a design of a dancing lady above the word ‘WHISPER’ against the oval devise. In both the marks, the copying by the defendant has gone to the extent of even placing a small label above the red strips. The minor changes introduced by the defendant are of no consequence whatsoever. The defendant has dishonestly and blatantly copied the plaintiffs’ artistic work. 7 The plaintiffs have claimed damages of Rs.5 lacs. The defendant, as stated above, has refused to appear. I am inclined therefore, to draw an 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. 8 Although the plaintiffs have claimed more than nominal damages, I am inclined to grant the damages of Rs.5 lacs. Added to the action by the defendant is the fact that the Court Receiver appointed pursuant to the interim order passed by this Court seized about 8,000 packets of the goods which are of the value of Rs.100/- per packet. It is reasonable to presume - 4 - 2.s.97.2005 that the defendant indulged in the aforesaid acts much prior to the present litigation. Considering the above factors, the claim of Rs.5 lacs ought to be allowed. 8 In the circumstances, the suit is decreed in terms of prayers (a) to (f) and (n). Costs to be quantified as per rules. For the purpose of implementing prayer (e), the Court Receiver shall continue in execution. Prayer (e) 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. Upon implementation of prayer (e), the Court Receiver shall stand discharged without further order and without passing accounts but subject to payment of his costs, charges and expenses. Refund of court fees, if any, as per rules. -