- 1 - 3.s.2044.2001 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2044 OF 2001 M/s. Asian Advertisers ..Plaintiff -Versus- M/s.Tiku Thermoware & Ors. ..Defendants .......... Mr.Nikhil Dhoka i/b Bharat Shah & Co. for the Plaintiff. None for the Defendants. .......... CORAM : S.J. VAZIFDAR, J. DATE : 20TH JULY 2011. P.C. 1 This is an action for infringement of the plaintiff’s registered design, passing off and for damages. 2 The plaintiff is the registered proprietor of a design. The registration certificate states the novel shape and certification of the casseroles. It is further stated that no claim is made by virtue of the registration in respect of any mechanical or other action or in respect of any mark or principle of construction of the article. - 2 - 3.s.2044.2001 2 The plaintiff’s goods apart from being circular in shape consists of novel moulding in various parts including at the top slightly below the top and at the bottom. The lid also consists of a piping around the circumference and with a novel handle. The design of the defendant’s goods are also the same. The placing of the handle and the lid, the location of the moulding and the shape of the handle are identical. 3 The plaintiff has examined one Rajendra Kantilal Parikh by filing his affidavit in lieu of examination-in-chief in 20th June 2011. The witness has affirmed the correctness of what is stated therein. The witness tendered a compilation of documents which is taken on record and marked ‘A’ collectively. 4 The plaintiff has thus made out a case of infringement of design. The general getup of the plaintiff’s goods and the defendant’s goods are also deceptively similar. There is no evidence on record that militates against what is stated in the plaint or the evidence of the plaintiff’s witness. 5 The plaintiff has established its reputation and goodwill in its design/work. Between November 1998 and 31st March 1999, the sales of the plaintiff’s product was of the value of over Rs.1 crore. Between 1st April 2000 to 30th December 2000, sales were over Rs.1.63 crores. - 3 - 3.s.2044.2001 6 The plaintiff’s have claimed nominal damages of Rs.1 lac. The plaintiff came to know about the defendant’s products in April 2001. The suit was filed on 7th June 2001. It is reasonable to presume that the products were sold by the defendants using the said design earlier. An adverse inference is justified to the effect that the defendants have deliberately not appeared and produced their record for the reasons that if they did so, the same would disclose the profits made by them using the said design. 7 In the circumstances, the suit is decreed in terms of prayers (a), (b), (d), (e) and (j). Costs to be quantified as per rules. 8 The plaintiff shall be entitled to withdraw the original documents upon their being substituted by copies certified by the plaintiff’s advocate to be true copies. The documents, however, shall be returned not earlier than the expiry of the period of limitation for an appeal and a further period of four weeks thereafter. -