1 nms-2611-s-2276-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 2611 OF 2006 IN SUIT NO. 2276 OF 2006. Aviat Health Care Pvt. Ltd. & Anr. ..Plaintiffs. vs. Systochem Laboratories Ltd. ..Defendants. .... Mr. A. S. Kamat, a/w. Ms. Priyanka Verma, i /b. M/s. Bharat Shah & Co., for the Plaintiffs. None for the Defendants. .... CORAM : S. J. KATHAWALLA, J. DATED : 9th DECEMBER 2010. P.C. The Plaintiffs are the registered proprietors of the trade mark “M.V.I.” (as evidenced by the certified entry, annexed at page 26 to the Plaint) and the proprietor of the artistic work comprising label of M.V.I. (annexed at page 31 to the Plaint). The Plaintiffs asserts a proprietary right in the said trade mark “M.V.I” (word per se) and “M.V.I.” label. The Plaintiffs have filed the present Suit complaining of infringement of their registered trade mark “M.V.I.”, infringement of their copyright comprised in the artistic work of “M.V.I.” label and passing off (qua the trade marks “M.V.I.” and the “M.V.I.” label) by virtue of the Defendants’ adoption and use of the impugned trade mark “MVI” and/or Multivinta (“the impugned trade mark”) and/or the impugned label of “MVI” (“impugned label”). 2 nms-2611-s-2276-06 2. By an ex-parte order dated 14th August 2006, this Court [Coram: Smt. Nishita Mhatre, J.] granted to the Plaintiffs ad-interim reliefs in terms of prayer clauses (a) to (d) of the Notice of Motion, except the bracketed portion. Thereafter, the Plaintiffs by their Advocates’ letter dated 2nd November 2006 informed the Court Receiver that the Defendants’ medicinal preparations bearing the impugned mark and/or impugned label are not available in the market. The Plaintiffs therefore, informed the Court Receiver that they were not interested in investigation and/or seizure of the Defendants’ medicinal preparations bearing the impugned mark and/or label. Accordingly, on 13th July 2007, the Court Receiver moved a Report before this Court, seeking a discharge. By an order dated 26th July 2007 this Court [Coram: S.J. Vazifdar, J.] discharged the Court Receiver without passing accounts, but subject to payment of his costs, charges and/or expenses. 3. The Plaintiffs have filed an Affidavit of Mr. Sandeep Umaji Shedekar dated 9th December 2010, evidencing the service of the papers and proceedings upon the Defendants. 4. Despite service, the Defendants have not entered appearance. Further, no Affidavit-in-Reply to the Notice of Motion has been filed by the Defendants. Hence, the contents of the Plaint and/or the Notice of Motion remain uncontroverted. 5. I have perused the records in the above matter and heard Mr. Kamat appearing on behalf of the Plaintiffs, who has sought confirmation of the ad-interim order in terms of prayers (a), (b) and (c) of the Notice of Motion. 3 nms-2611-s-2276-06 6. The Plaintiffs are the registered proprietor of the trade mark “M.V.I.” and the “M.V.I.” label (hereinafter collectively referred to as “the M.V.I. trade marks”). The Plaintiffs and/or their predecessors-in-title have been using the M.V.I. trade marks and/or the label from the year 1958. The Plaintiffs have produced year-wise sales figures since 1978 (page 32 of the Plaint), specimen invoices (pages 34 to 42 of the Plaint) and a statement of promotional expenses (page 43 of the Plaint), in respect of their products bearing the ‘M.V.I.” trade marks and/or label. The Plaintiffs have thus established longstanding goodwill and/or repute in respect of their ‘M.V.I.” trade marks and/or label. 7. A mere perusal of the impugned trade mark and/or the impugned label (at page 45 of the Plaint) makes it apparent that the same is identical, similar and/or deceptively similar to the Plaintiffs’ registered trade mark “M.V.I.” and/or the MVI” label. The manifest dishonesty of the impugned trade mark and/or the impugned label is apparent from the manner in which the Defendants have prominently displayed the letters “MVI” upon the impugned label and/or in the impugned trade mark. This infact enhances the identity and/or deceptive similarity of the impugned trade mark and/or the impugned label qua the Plaintiffs’ M.V.I. trade marks and/or label. The same also leaves no manner of doubt that the Defendants’ adoption and/or use of the impugned trade mark and/or the impugned label is with the calculated intent to ride upon the Plaintiffs’ extensive goodwill and/or reputation in their ‘M.V.I.” trade mark and/or label. The Plaintiffs’ claim of infringement and/or passing off is thus prima facie made out. 4 nms-2611-s-2276-06 8. Considering that the rival trade marks and/or labels are used in respect of pharmaceutical preparations, a strict test is liable to be applied. In view of the aforesaid, I am of view that the Plaintiffs have made out a strong prima facie case for confirmation of the ad-interim order in terms of prayers (a) to (c) of the Notice of Motion. I am also of the view that the Defendants’ adoption of the impugned trade mark and/or the impugned label is dishonest. The Plaintiffs have longstanding proprietary rights, goodwill and/or repute in the “M.V.I.” trade marks and/or label. Hence, the factors of balance of convenience and irreparable hardship are also in favour of the Plaintiffs. 9. In view of the above, the Notice of Motion is made absolute in terms of prayer clauses (a) to (c) of the Notice of Motion, except the bracketed portion. The Notice of Motion is accordingly disposed of. [ S.J. KATHAWALLA, J. ]