- 1 - 10.s.1206.06 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1206 OF 2006 Shalina Laboratories Pvt. Limited ..Plaintiff -Versus- Ronilo Pharma Pvt. Ltd. ..Defendant .......... Mr.Hiren Kamod i/b Himanshu W. Kane for the Plaintiff. None for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 18TH OCTOBER 2011. P.C. 1 The suit is filed for infringement of trade mark, copyright and for passing off. 2 The plaintiff is the registered proprietor of a label mark a prominent part whereof contains the words ‘IBUCAP’. The registration is under class 05. The defendant has used the mark ‘IBUNCAPS’. The deceptive similarity phonetically and visually between the two marks is patent. The addition of a letter ‘N’ makes no difference. 3 The sales figures annexed at Exhibit ‘B’ at page 26 to the plaint establishes the goodwill and reputation of the plaintiff’s products sold under - 2 - 10.s.1206.06 the said mark. The sales figures of the plaintiff’s products under the said mark increase from over Rs.20 lacs in the year 1996-97 to over Rs.10 crores in the year 2004-05. 4 The defendant has also copied the plaintiff’s copyright in the artistic work contained in the said label. The same is obvious from the main feature of the artistic work. The same have been rightly depicted in paragraph 12 of the plaint. The background in both the works is blue in colour of various shades. Against the blue background, it is the devise of veins in white. That the veins are thicker in the defendant’s work makes no difference. There is also a devise of a human body facing backwards with hands away from the body. The position of the legs and the hands and the arms is almost identical. The nervous system is also depicted throughout the body. 5 The plaintiff has claimed damages of Rs.5 lakhs. The defendnat has failed to appear. I am inclined therefore, to draw an adverse inference against the defendant for not having remained present and not filing the written statement to the effect that the defendant has remained absent knowing that their records would indicate that the plaintiff has suffered damages in excess of what is claimed. - 3 - 10.s.1206.06 6 In addition thereto is the fact that the defendant remained absent, throughout the proceeding. Pursuant to interim orders, the Court Receiver was appointed. The Court Receiver took possession of the goods. Even thereafter, no attempt was made by the defendant to have the goods released. 7 In the circumstances, the suit is decreed in terms of prayers (a) to (e) and (k). Costs to be quantified as per rules. Prayer (e) shall be complied with by the defendant within eight weeks of being served with the copy of this order. The Court Receiver has deposited the infringing material seized by him with the plaintiff as an agent of the Court Receiver. The validity period of the products by now must have expired. I see no reason not to permit the plaintiff to destroy the goods on behalf of the Court Receiver. The plaintiff shall however not do so until after the expiry of a period of eight the service of a copy of this order upon the defendant. Thereupon, the Court Receiver shall stand discharged without passing accounts but subject to payment of his costs, charges and expenses. -