IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3445 OF 2006 IN SUIT NO. 2839 OF 2006 Nitco Tiles Limited..... ...... ......Plaintiff. V/s Sonata Ceramica Pvt. Ltd. ...... ......Defendant. Mr.Virag Tulzapurkar, Sr. Adv. With Mr.Arup Pereira i/by M/s.Wadia Ghandy & Co., Adv. for the plaintiff. Mr.Sanjeev Hariakar, Adv. for the defendant. CORAM: A.P.DESHPANDE, J. 19.6.08 02.7.08 PC: The plaintiff-company carries on business of manufacturing and marketing tiles and flooring material. The plaintiff's suit is for preventing the acts of infringement of the copy right and it seeks relief against passing off. 2. It is the case of the plaintiff that it has developed tiles with “AQUA” effect having unique wary shape on all four sides of each tile so that each tile when set by another on the surface gives seamless appearance. The plaintiff has then averred that the artistic work, shape and get up of the product has been designed by the plaintiff. The plaintiff claims to have spent much time, effort and money in developing the product. 1 3. It is the case of the plaintiff that the plaintiff is the owner and proprietor of the brand name/trade mark “AQUA” which is being used by the plaintiff since January 2005. The trade mark has been used widely and continuously in relation to the product, claims the plaintiff. The plaintiff has aplied for registration of the trade mark “AQUA” and the application is pending registration. 4. According to the plaintiff it had created a sales catalogue in November, 2004 for the purposes of advertising and promoting the product viz. the tiles and the same were distributed by the plaintiff to the members of the trading community and public in January, 2005. According to the plaintiff the cover page of the catalogue replicates a tile having an ocean blue shade. The outer edge of the plaintiff's catalogue has a wary shape like the tiles from the “AQUA” collection. 5. The theme of the plaintiff's product being “AQUA” there are pictures of fish and shell in the catalogue. The learned senior counsel for the plaintiff has submitted that the defendant in or about March, 2006 published and introduced in the market sales catalogue in which the defendant was offering for sale premium glazed proclaim tiles under the brand name/trade mark “AQUALIT/AQUAFLO”. 6. It is then contended that the impugned sales catalogue published by the defendant has a get up similar to that of plaintiff's sales catalogue. According to the plaintiff the artistic work, shape and get up of the impugned product in relation to the trade mark “AQUALIT/AQUAFLO” is identical to artistic work, shape and get up 2 of the plaintiff' s product sold under the trade name “AQUA”. The impugned product also has all the important and conspicuous trapings such as wary shape on all sides, artistic work, and get up including use of fish and shell. Comparison of the product and the catalogue leaves no room of doubt, at least prima facie, that the defendant has copied the work and the product of the plaintiff. The defendant has illegally adopted the impugned trade mark “AQUALIT” which is deceptively similar to the plaintiff's trade mark “AQUA” used in relation to the product. 7. The defendant has caused harm to the plaintiff' s business and deception to the trade and public. The defendant has infringed the copy right of the plaintiff. The defendant is thus passing off the impugned product and the impugned sales catalogue as and for the plaintiff' s product and sales catalogue. 8. The learned counsel for the defendant has tried to contend that the word “AQUA” is a descriptive word and literally means water hence no one can claim a right to it. “AQUA” in the context of tiles or other home products can very well be a trade mark. In the present case the tiles and the catalogue depict “AQUA” effect. Thus the submission made by the counsel for the defendant does not carry the case of the defendant any faurther and the same is rejected. 9. It will not be out of place to mention that an ad-interim order was passed on 19.10.2006 in plaintiff's favour. The said order records a statement made by the learned counsel for the defendant that the 3 defendant is not using and shall not use the mark “AQUAFLO”. The order also records that there is no opposition as regards infringement of copy right. Having regard to the totality of facts and circumstances of the case I have no iota of doubt that prima facie the plaintiff has made out a good case for granting the reliefs prayed for. 10. In the result notice of motion is made absolute in terms of prayer clause (a). Notice of motion stands disposed of accordingly. 4