- 1 - 7.s.640.2004 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.640 OF 2004 Franco-Indian Research Pvt. Ltd. ..Plaintiff -Versus- Unichem Laboratories Ltd. ..Defendant .......... Mr.Mahesh Mahadgut i/b V.S.Hegde & M.A.Mahadgut for the Plaintiff. None for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 10TH AUGUST 2011. P.C. 1 This is an action for infringement and for passing off. 2 The plaintiff is the registered proprietor of the word mark ‘EVACUOL’. The defendant has used the mark ‘EVACAL’. The defendant is absent. There is no written statement. There is nothing on record that militates against the submissions and averments made in the plaint including the sales figures and promotional expenses incurred by the plaintiff in respect of the said mark. - 2 - 7.s.640.2004 3 The two marks are deceptively similar visually and phonetically. The substitution of the vowel ‘V’ and ‘O’ with the letter ‘A’ makes no difference. The marks are nevertheless likely to be pronounced in the same/similar manner. The plaintiff has, therefore, established its case for infringement. 4 During the period 1998-99, the plaintiff sold its products under the said mark of a value of Rs.24,11,411/-. The sales have been more or less consistent over the years with a slight increase. The sales were marginal higher over the years. In the year 2003-04 the sales were Rs.28,03,546/-. The plaintiffs has, therefore, established its reputation and goodwill in respect of the said mark. 5 The plaintiff has claimed nominal damages of Rs.51,000/-. I am inclined therefore, to draw an adverse inference against the defendant for not having remained present and not filing the written statement to the effect that it has remained absent knowing that its records would indicate that the plaintiff has suffered damages in excess of what is claimed. 6 In the circumstances, the suit is decreed in terms of prayers (a), (b), (c), (d) and (i). The defendant shall comply with prayer (d) within eight weeks of being served with a copy of this order by the plaintiff/plaintiff’s advocate. - 3 - 7.s.640.2004 Costs to be quantified as per rules. Refund of court fees, if any, as per rules. -