1 s295-06 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.295 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 and passing off. The plaintiff is the registered proprietor of the label mark a dominant part whereof consists of the word “PANCEF-O”. The defendants have used the mark “NCEF”. For the reasons stated in the ad-interim order dated 7.2.2006, the marks are deceptively similar. I see no reason to take a different view in this regard. Although the letters “PA” form the prefix in the plaintiff’s mark and are absent in the defendants’ mark, it would make no difference to the phonetic similarity. When the impugned mark is pronounced, it can easily be confused for the plaintiff’s mark. 2. In addition thereto, the defendants have used the mark “NECF-0”. 2 s295-06 3. There is obvious imitation by the defendants of the plaintiff’s artistic work. In this regard, it is evident from a comparison of Exhibit “C” with Exhibit “K” and Exhibit “E” with Exhibit “L”. The intention to copy is evident inter-alia from the lettering, font, placement of the word marks, colour scheme as well as as the curved lines in some of the works. Added to this is the fact that defendant No.2 was an employee of the plaintiff. 4. The sales figures and the promotional expenses set out in Exhibit “H” establish the plaintiff’s goodwill and reputation in its work. 5. 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. 6. The plaintiff has claimed damages of Rs.5,00,000/-. Considering the number of infringements and the fact that the infringement is not merely of the trade mark but also of the copyright, 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. 7. In the circumstances, the suit is decreed in terms of prayers (a), (b), (c), (d), (e) and (k). 8. Costs to be quantified as per rules. Refund, if any, as per 3 s295-06 rules. 9. Prayer (e) shall be complied with within eight weeks of being served a copy of this order. 10. Considering the fact that the goods seized by the Court Receiver have in any event 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 place 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.