1 s873-06 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.873 OF 2006 Aglowmed Limited ....Plaintiff V/s. Neomed Healthcare & Ors. ....Defendants Mr.Mahesh A. Mahadgut for the Plaintiff. None for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 23RD SEPTEMBER, 2011. P.C. :- 1. This is an action for infringement of copyright and passing off. The plaintiff’s artistic work is at Exhibit “A”. The defendants’ artistic work is at Exhibit “F”. There is obvious infringement. The plaintiff’s mark comprises of a label being divided into four sections, each with a different colour. Each band contains some printed material. The bands proceed at an angle of about 45 degrees from left to right. To this extent, the defendants’ artistic work is almost identical. The colour scheme is also similar except that the plaintiff has used darker shades of the same colours. The dominant lettering in the defendants’ work is also at a similar angle. The intention to infringe is clear. 2. The sales figures and the promotional expenses furnished 2 s873-06 by the plaintiff at Exhibit “C” establish the enormous reputation of the products sold in packaging contained in the said artistic work. 3. The defendants are absent. There is no written statement. There is nothing on record that militates against the averments and submissions contained in the plaint. Added to this is a fact that defendant No.2 was an employee of the plaintiff. This is not the only case that the defendants have been found to be indulging in infringement and the tort of passing off. A similar suit for infringement of copyright and passing off has been filed being Suit No.295 of 2006, which was also decreed earlier today. 4. The plaintiff has claimed damages of Rs.5,00,000/-. Considering the fact that this is not the first occasion the defendants have infringed the trade mark and copyright as well as passed off their goods as those of the plaintiff, I am inclined to grant the same. I am also inclined to draw an adverse inference against the defendants on account of their having remained absent throughout to the effect that they have remained absent, knowing that if their records had been produced, the plaintiff’s case even regarding damages, would have been established. 5. In the circumstances, the suit is decreed in terms of prayers (a), (b), (c), (d) and (i). 6. Costs to be quantified as per rules. Refund, if any, as per rules. 3 s873-06 7. Prayer (d) shall be complied with within eight weeks of being served a copy of this order upon the defendants. 8. Considering the fact that the goods seized by the Court Receiver have in any event expired and are in the custody of the plaintiff and no application had been made during the pendency of the suit by the defendants for return of the goods, the ends of justice would be met by permitting the plaintiff to destroy the goods seized by the Court Receiver and placed in the custody of the plaintiff as an agent of the Court Receiver. The plaintiff shall however not destroy the goods until after a period of eight weeks after the expiry of the period of limitation for filing an appeal against this order and judgment. In the event of the order being implemented, in terms of prayer (e), the Court Receiver shall without further orders, stand discharged without passing accounts but subject to payment of his costs, charges and expenses.