1 s3268-05 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.3268 OF 2005 Alcon INC & Anr. ....Plaintiffs V/s. Shelon Pharmalabs Pvt. Ltd. & Anr. ....Defendants Mr.Nishad Nadkarni i/b Legasis Partners for the Plaintiffs. None for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 30TH SEPTEMBER, 2011. P.C. :- 1. This is a suit for infringement of copyright and for passing off. 2. The plaintiff is a registered proprietor of the marks “TOBREX” and “TOBRADEX” in clause – 5. The defendants have used the word “TOBEX” in respect of the identical goods. The deceptive similarity between the plaintiffs’ marks especially “TOBREX” and the impugned marked “TOBEX” is patent. 3. The plaintiffs have made out in the plaint a strong case of their marks being well known marks with a transborder reputation in India. The sales figures of the international sales of the products under such marks have been furnished in paragraph 15. The value of the 2 s3268-05 sales in the year 1985 were US $ 7,466,000. The same increased enormously of the years. In some years, the sales were over US $ 49.00 million. These figures are only in respect of the goods under the marks “TOBREX”. The promotional expenses are also enormous. The plaintiffs have in paragraph 17 of the plaint referred to several journals in which their products including those under the said marks have been referred to and advertised. It is averred that these journals have international circulation including in India. It is further averred that the products are used internationally. Moreover, the products have been shipped to India as mission shipments for humanitarian purposes. 4. The product was launched in India in the year 2005. The pre-launch promotional activities took place. The sales figures of March,2005 itself exceeded Rs.39.00 lacs. The pre-launch expenses exceed to Rs.15.00 lacs. 5. The defendants have remained absent despite the interlocutory orders passed against them. There is no written statement. The defendants are absent even today. 6. There is nothing on record that militates against the plaintiffs’ claim. There is no warrant for disregarding any of the averments and submissions contained in the plaint. It is a fit case to accept the submissions and averments in the plaint as correct. 7. The plaintiffs have therefore made out a case for infringement and passing off. 3 s3268-05 8. The plaintiffs have claimed a damages of Rs.10.00 lacs. Although no evidence has been led formally in Court, I am inclined to grant more than just nominal damages for more than one reason. Firstly, I am 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. Furthers the defendants have violated an order dated 30.10.2007 by which, they were directed to disclose to this Court within fifteen days on affidavit the details of the manufacture, production and sales of the impugned products depicted at Exhibit “F” to the plaint including the period of manufacture and sales ; quantum of manufacture ; production and sales ; amounts of sale price realized or realizable ; profits collected and/or due and payable in respect of the impugned products. The defendants have committed a breach of the order by not filing an affidavit, as directed by this Court. This is a strong reason for drawing an adverse inference against the defendant to the effect that they have refused to comply with the order knowing full well that the same would support the plaintiffs’ claim for damages at least to the extent of the amount claimed. Moreover it is important to note that pursuant to the interim orders, the Court Receiver took possession of some of the infringing 4 s3268-05 material the value whereof, based on the number of strips and the price of each unit, is about Rs.3.05 lacs. This of course is only in respect of the material seized. In view of what is stated hereinabove, this would not be indicative of the extent of damages. 9. In the circumstances, the suit is decreed in terms of prayers (a), (b), (c), (d), and (j). Costs to be quantified as per rules. Refund, if any, as per rules.