- 1 - 2.s.377.2001 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.377 OF 2001 M/s.Asian Advertisers ..Plaintiff -Versus- M/s.Besto Industries (I) & Anr. ..Defendants .......... Mr.Vikhil Dhokha i/b Bharat Shah & Co. for the Plaintiff. None for the Defendants. .......... CORAM : S.J. VAZIFDAR, J. DATE : 24TH AUGUST 2011. P.C. 1 This is an action for infringement of the plaintiff’s registered design, passing off and for damages. 2 The plaintiff is the registered proprietor of a design. The registration certificate states the novel shape and certification of the casseroles. It is further stated that no claim is made by virtue of the registration in respect of any mechanical or other action or in respect of any mark or principle of construction of the article. 3 The plaintiff has examined one Rajendra Kantilal Parikh by filing his affidavit in lieu of examination-in-chief in 20th July 2011. The witness has - 2 - 2.s.377.2001 affirmed the correctness of what is stated therein. The witness also tendered a compilation of documents which is taken on record and marked ‘A’ collectively. 3 The plaintiff’s goods apart from being circular in shape consists of novel moulding in various parts including at the top slightly below the top and at the bottom. The lid also consists of a piping around the circumference and with a novel handle. 4 The defendants have copied the plaintiff’s registered design. This is clear by juxtaposing photographs of the various parts of the products of the plaintiff and the photographs of the corresponding parts of the defendants’ products. The moulding and the handle on the sides of the main compartment and on the lid is the same. The moulding at the bottom of the container is the same. The placing of the handles are also the same. 5 The defendants have, also on the packaging, adopted the same bar code as placed by the plaintiff. The plaintiff had placed the bar code after obtaining the registration with EAN, India. 6 Defendant No.1 had earlier filed an affidavit dated 9th February 2001 in Notice of Motion No.294 of 2001 taken out by the plaintiff in above suit - 3 - 2.s.377.2001 inter-alia stating that they had destroyed and rubbed off all essential materials including the dies used in the business and that they had sold the entire materials as scrap and were doing business in which there could be no objection. It is further stated that all the stocks had been destroyed. 7 The defendants have however, not appeared today. However, in view of the statement in the affidavit, there could be no reason to deny the reliefs claimed. 8 The plaintiff has thus made out a case of infringement of design. The general getup of the plaintiff’s goods and the defendant’s goods are also deceptively similar. There is no evidence on record that militates against what is stated in the plaint or the evidence of the plaintiff’s witness. 9 The plaintiff has established its reputation and goodwill in its design/work. Between November 1998 and 31st March 1999, the sales of the plaintiff’s product was of the value of over Rs.1 crore. Between 1st April 2000 to 30th December 2000, sales were over Rs.1.63 crores. 10 The plaintiff’s have claimed nominal damages of Rs.5 lacs. It is reasonable to presume that the products were sold by the defendants using the said design earlier. An adverse inference is justified to the effect - 4 - 2.s.377.2001 that the defendants have deliberately not appeared and produced their record for the reasons that if they did so, the same would disclose the profits made by them using the said design. 11 In the circumstances, the suit is decreed in terms of prayers (a), (b), (d), (e) and (j). Costs to be quantified as per rules. 12 The plaintiff shall be at liberty to withdraw the original documents upon their being substituted by copies certified by the plaintiff’s advocate to be true copies. The same shall, however, not done until after eight weeks after the expiry of the period of limitation of filing an appeal against this order. -