1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.12 OF 2007 IN SUIT NO.3588 OF 2006 Mr.Ashok M. Bhat. ...Plaintiff. Vs. Mr.Godfrey D silva. ...Defendant. Mr.Virendra Tulzapurkar, Sr. Counsel with Vinod Bhagat, Punit Jani and Dhiren Karania i/by G.S. Hegde and V.A. Bhagat for the Plaintiff. Mr.L.R. Castelino with Ms. Bindu Panicker for the Defendant. CORAM : R.S.MOHITE, J. DATE : 26TH JUNE, 2009 P.C. 1. This is a notice of motion taken out by the original plaintiff for injunction in terms of prayer clause (a) to (d). 2. It is the case of the plaintiff that the petitioner is the Proprietor of Nova and Company and he is engaged in the business of manufacturing and marketing of cosmetic products including 2 brilliantine creams and other goods. That earlier a partnership firm by name Nova and Company, in which the plaintiff was also a partner was the owner of several trade marks duly registered under the Trade Marks Act,1999. Amongst various registered trade marks, registered trade mark No. 126501 pertained to the word Nova relating to cosmetic products including brilliantine creams and other goods. There was also registration under the Copy Rights Act in relation to certain artistic design granted by the office of the Copy Rights on 30.7.1975. It is the plaintiff s case that by deed of assignment executed on 10.10.2006 executed between the Nova Company and the petitioner, all rights in the said trademark Nova and the copyright in respect of the aforesaid artistic works were assigned to the plaintiff and therefore, be became the owner of this trade mark. On 3.11.2006, the plaintiff made an application for registration of the assignment in his favour. The said assignment was ultimately registered on 27.6.2008. 3 3. It is the case of the plaintiff that in October, 2006 he found that the defendant was marketing goods in violation of the rights under the Trade Mark as well as Copy Right Act. In the circumstances, the present suit came to be filed. 5. The record indicates that in this Notice of Motion ad interim injunction was granted on 6.1.2007. This court observed that on merits of the case, deceptive similarity of the two products was obvious and it was difficult to distinguish the two, since the get up of the label and the packaging are deceptively similar. It was observed that the substitution of the word Chem by the word Kem made no difference to the deceptive similarity. This court therefore, granted ad interim relief in terms of prayer clause (a), (b), (c) and (d) (except the bracketed portion). 6. On behalf of the defendant, it is contended 4 that the deed of assignment which was entered into on 10.10.2006 was not valid in law. This argument is made on the footing that the assignee was also a partner of the assignor firm and he has therefore, signed as assignor as well as assignee. There is no substance in this argument. It is seen that the plaintiff has signed at two places in different capacities. He has signed in the capacity of partner of firm and has subsequently signed as assignee. 5. It was then contended by the defendant that no cause of action has arisen to the plaintiff to file this suit. This contention is on the basis that when the suit was filed, assignment in favour of the plaintiff has not been registered. Reliance was placed by the Advocate on Section 45 which deals with the registration of assignment and transmission. It was contended that, said section provides that unless the assignment was registered, it cannot be admitted into evidence. This 5 contention cannot be accepted. Admittedly, deed of assignment now stands registered much before we have reached the stage of evidence. The Advocate appearing for the defendant relied Section 15 of the Copy Right Act and contended that since the defendant had registered his mark under the Designs Act,2000, no copy right action could succeed against the plaintiff in respect of the similar design. That argument is not acceptable. The provisions of Section 15(1) cannot affect the copy right of the plaintiff . What is provided is that, if the design is registered under the Design Act, then there is no similar right which could exist under the Copy Right Act, 1957. It was lastly contended that the goods being marketed by the defendant were not deceptively similar because cartons were of larger size. It was also contended that there were additional words KEM which was a registered trade mark. In this regard, reliance can be made upon a judgment of the Supreme Court in the case of Rustom & Hornsby Ltd. Vs. Zamindara Engg. 6 Co. Reported in PTC (Suppl) (1) 175 (SC) in which the Apex Court held that addition of some words will not make a difference as long as there is a deceptively similar word which infringes plaintiff s trade mark. In my view, therefore, this is a case where ad interim injunction deserves to be continued pending disposal of the suit. Notice of motion is therefore, made absolute in terms of prayer clause (a)(b)(c) and (d) ( except the bracketed portion) and stands disposed off. (R.S. MOHITE, J.)