- 1 - 11.s.1195.05 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1195 OF 2005 Proctor and Gamble Hygiene & Health Care Limited & Anr. ..Plaintiffs -Versus- V.L.Pharma ..Defendant .......... Mr.Nishad Nadkarni i/b Legasis Partners for the Plaintiffs. None for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 20TH AUGUST 2011. P.C. 1 This is an action for infringement of a registered trade mark and copyright and for passing off. 2 The plaintiffs are the registered proprietors inter-alia of the word marks ‘VAPORUB’ and ‘VICKS VAPORUB’ and the label mark which contains the word marks and the devise of the bottles in which the plaintiffs' products are sold. 3 The sales figures mentioned in the plaint are sufficient to establish the plaintiffs’ enormous reputation and goodwill in the said marks. - 2 - 11.s.1195.05 4 The plaintiffs' products are sold in bottles and in small circular packets on which are affixed the labels. The plaintiffs used different packages or labels over a period of time. It is sufficient only to refer to those labels which are relevant to the present action. 5 The defendant has used the word mark ‘VELORUB’. The mark is patently deceptively similar to the plaintiffs' mark. The plaintiffs have, therefore, established a case for infringement and for passing off quay the impugned mark ‘VELORUB’. The same has been affixed by the defendant upon similar circular packets. The overall get up of the defendant’s label indicates the artistic work therein is a slavish imitation of the plaintiffs' copyright. The two striking features are the use of a blue background and depiction of vapour in the shape of three of the letters ‘S’ inverted. Further, the lid of the circular packet is not only white in colour but has a similar design on it. The rest of the packet is blue. 6 It is pertinent to note that on a previous occasion, the defendant had furnished the plaintiffs an undertaking/affidavit dated 10th July 2001, wherein the defendant agreed not to use various marks of the plaintiffs and the plaintiffs' copyright as per the annexures to the affidavit/undertaking. The annexure including the present impugned labels/artistic work and trade mark. Despite the same, the defendant continued to infringe the - 3 - 11.s.1195.05 plaintiffs' copyright and trade marks. 7 The defendant has used the word mark ‘VELORUB’ on its bottles containing the defendant’s product. The artistic work on the label affixed to the defendant’s packets and the defendant’s bottle themselves are a slavish imitation of the artistic work comprised in the plaintiffs’ bottles and labels. In both bottles, the caps are green and the bottles are blue. In both inverted ‘S’ depicting vapour is almost identical in shape though not in colour. 8 In the circumstances, the plaintiffs have established a case for infringement and copyright in respect of both the aforesaid works. 9 The defendant is absent. No written statement has been filed. They have remained absent despite the interlocutory orders. There is nothing on record that militates against the submissions and averments made in the plaint. I am inclined to accept the submissions and the averments as correct. 10 The plaintiffs have claimed damages of Rs.5 lacs. The defendant, as stated above, has failed to appear. I am inclined therefore, to draw an adverse inference against the defendant for not having remained present - 4 - 11.s.1195.05 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. 11 In the circumstances, the suit is decreed in terms of prayers (a) to (f) and (h). 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 (e) 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 (e) being complied with, the Court Receiver shall stand discharged without passing accounts but subject to payment of his costs, charges and expenses. Refund of court fees, if any, as per rules. -