- 1 - 3.s.3483.2002 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.3483 OF 2002 Medley Laboratories (P) Ltd. & Anr. ..Plaintiffs -Versus- Moxy Laboratories Pvt. Ltd. ..Defendant .......... Ms.Shweta Sharma a/w.Ms.Melissa Peas i/b M/s.M.V.Kini for the Plaintiffs. None for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 16TH SEPTEMBER 2011. P.C. 1 This is an action for infringement and passing off. 2 The plaintiffs are the registered proprietor of the mark ‘SPOXIN’. The defendant has used the mark ‘SPAXIN’. The deceptive similarity is patent. 3 The plaintiff has furnished at Exhibit ‘C-1’, the sales figures which establishes the plaintiffs’ reputation and goodwill in the said mark. Between September 1999 to March 2000, the sales were of the value about Rs.39 lakhs. The same increased to Rs.85 lakhs through the - 2 - 3.s.3483.2002 subsequent financial years. Thereafter, they dropped marginally to about Rs.68 lakhs. The sales were are for considerable value. The plaintiffs have, therefore, established a case for infringement and passing off. 4 There is nothing on record that militates the plaintiff’s claim. I see no reason to disbelieve any of the averments and submissions in the plaint. 5 The plaintiffs have claimed nominal damages of Rs.1,00,000/-. In view of the defendant’s absence and in view of their having failed to file a written statement and produce their evidence, I am inclined to draw an adverse inference that they have done so knowing that had they appeared and produced their evidence, the plaintiffs would have been able to establish damages at least to the extent claimed by them. 6 The suit is, therefore decreed in terms of prayers (a), (b), (c), (d) and (f). Prayer (d) shall be complied with within twelve weeks from the receipt of this order by the defendant. Costs to be quantified as per rules. Refund of court fees, if any, as per rules. -