1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1491 OF 2007 IN SUMMARY SUIT NO.1155 OF 2007 Mahyco Seeds Ltd. ....Plaintiff V/s. Rajureshwar Seeds & Ors. ....Defendants Mr.H.W. Kane for the Plaintiff. Mr.Rupesh K. Bobade for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 4TH SEPTEMBER, 2009. P.C. :- 1. This is an action for infringement of copyright and for passing off. As far as the Plaintiff’s action for infringement of copyright is concerned, there can be little, if any, doubt that the Defendants have infringed the Plaintiff’s copyright in the artistic work created on behalf of the Plaintiff. 2. Artistic work has been applied to the sachets/packets in which seeds, bajra hybrid, are sold. The essential features of the Plaintiff’s artistic work are a plastic bag with a handle cut within the bag at the top ; green background covering about 2/3rd of the bag ; a semi circle with the center on the right lower corner covers the balance portion of the face of the bag. Within the semi circle are depicted clouds. Starting from the lower right side are depicted two bajra cobs which cut through the semi circle at the 2 top to a slight extent. 3. Identical features appear also on the Defendants’ packets except that in the semi circular portion of the Plaintiff’s bag the colour is a light blue, whereas the colour in the Defendants’ packet is light green. Even the clouds within semi circle have been copied. The positioning of the bajra stems is also almost identical. Moreover, the word “RESEARCH” in both the bags are placed similarly viz. below the word marks of the parties. The numeral 204 also appears on both the packets in an almost identical manner and style. The entire get up has been copied. 4. The differences between the two sides of the Plaintiff’s packet have also been copied. For instance there is a semi circle in both the packets. The manner in which the bajra seeds have been placed are identical and different from the front portion in that at the back the bajra stems are joint in the shape of the letter “V”. The label containing the details of the contents is also placed in an identical manner. 5. A mere look at the two packets indicates that there has been a slavish copying by the Defendants of the Plaintiffs’ artistic work. There is almost nothing of any significance which differentiates the Defendants’ work from that of the Plaintiffs’ artistic work. The Plaintiffs have therefore made out more than just a strong prima-facie case regarding infringement of its copyright. 6. Leave under Clause XIV was granted to the Plaintiffs by an order dated 10.7.2007. 7. This brings me to the Plaintiffs’ case for passing off. The Plaintiffs have sought an injunction restraining the Defendants from 3 passing off their goods as the goods of the Plaintiffs, from manufacturing selling, offering for sale, exhibiting, exhibiting for sale, advertising or otherwise dealing in hybrid seeds bearing the trade mark “204” as appearing on the labels Exhibits D-1 and D-2 or otherwise. 8. That the Plaintiffs have been using the mark “204” in respect of its products as contended in the plaint is not effectively denied. The Plaintiffs’ predecessor Field Crops Seeds Division of the Maharashtra Hybrid Seeds Company Limited, adopted the composite trade mark inter- alia containing the fancy numeral 204 in a stylized manner along with the house mark MAHYCO in respect of hybrid bajra seeds. Pursuant to an order dated 6.6.2002, passed by this Court, sanctioning the scheme of arrangement, the undertaking and the properties of the field crop seeds division of the said Company including the said mark were transferred to and vested in the Plaintiff with effect from 1.4.2001. The mark has admittedly been used extensively prior to the user thereof by the Defendant. The sales have increased from 1,87,348=50 Kg. in the year 2001 to 2002 to 5,83,080/- for the years 2006-2007 resulting in an increase in the value of sales from Rs.1,64,31,199/- to Rs.7,68,57,614=20. Thus the Plaintiff has established its reputation in respect of the said mark as well. The two marks are even written in the same manner. 9. In the circumstances, the Notice of Motion is made absolute in terms of prayers (a)and (b). The costs shall be costs in the cause. 10. The Notice of Motion is accordingly disposed of.