1 nms-2027-06-s-1807-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 2027 OF 2006 IN SUIT NO. 1807 OF 2006. SMS Formulations Private Ltd. & Anr. ..Plaintiffs. vs. Ganesh Laboratories India Pvt. Ltd. & Ors. ..Defendants. .... Mr. Ashish Kamat, for Plaintiffs. None for Defendants. .... CORAM : S.J. KATHAWALLA, J. DATE : 1ST DECEMBER 2010. P.C. The Plaintiffs have filed the present Suit complaining of the infringement of their registered trademark IBULMOL, infringement of copyright in their artistic work in the IBULMOL carton and passing off, by virtue of the Defendants’ use of the impugned trademark IBUMOL (the impugned mark) and/or the impugned IBUMOL carton (the impugned carton). 2. The Plaintiffs are the registered proprietors of the trademark IBUMOL with effect from 28th March 2001. The Plaintiffs have also on 8th April 2005 registered their copyright in the artistic work comprised in the IBUMOL carton. The relevant certificates for registration are to be found at pages 24 and 25 of the plaint. In support of the Plaintiffs’ claim of user, sales and goodwill qua the 2 nms-2027-06-s-1807-06 trademark IBUMOL and/or the IBUMOL carton, have produced a statement of sales figures from the years 2000-2001 till 2005-2006, at page 28 of the Plaint and certain invoices at pages 29 to 43 of the Plaint. 3. The Plaintiffs have in paragraph 11 of the Plaint stated that in April 2006, they became aware of the impugned mark and the impugned carton of IBUMOL. The Plaintiffs have stated that the impugned mark and the impugned carton are identical and/or deceptively similar to their registered trademark IBUMOL and/or the IBUMOL carton. It is on this basis that the Plaintiffs have founded their claim for infringement of their registered trademark IBUMOL and the IBUMOL carton and for passing off. 4. By an ex-parte order dated 6th July 2006, this Court [Coram : Smt. Nishita Mhatre, J.] granted the Plaintiffs ad-interim reliefs in terms of prayer clauses (a), (b) and (c), except the bracketed portion and prayer clauses (d) and (e) of the Notice of Motion. 5. In terms of the said order, the Court Receiver of this Court has filed his reports dated 27th July 2006 and 31st July 2006 recording the taking of possession of the Defendants’ goods bearing the impugned mark and/or the impugned carton. The Plaintiffs have 3 nms-2027-06-s-1807-06 also filed affidavits of Mr. Sandeep Shedekar dated 29th July 2006 and Mr. Mitesh Shah dated 29th July 2006 proving service of the proceedings on the Defendants. 6. Despite service, the Defendants have not entered appearance and/or filed any reply to the Notice of Motion. In such circumstances, the Plaintiffs’ assertions in the Plaint remain uncontroverted. 7. Further, a mere perusal of the impugned mark “IBUMOL” and/or the impugned carton of IBUMOL, makes it apparent that the same are identical, deceptively similar and/or slavish imitations of the Plaintiffs’ registered trademark IBUMOL and/or the IBUMOL carton. It is but apparent that the Defendants have adopted the impugned mark and/or the impugned carton, to imitate and trade upon the Plaintiffs’ goodwill and reputation in the registered trademark and/or the carton of IBUMOL. I therefore find a strong prima facie case in favour of the Plaintiffs. Considering that the rival products are medicinal preparations, a strict test is liable to be applied and the balance of convenience is in favour of the Plaintiffs. Hence, in my view, the ad-interim order dated 6th July 2010 deserves to be confirmed. 8. In the circumstances, the Notice of Motion is made 4 nms-2027-06-s-1807-06 absolute in terms of prayer clauses (a), (b) and (c) except the bracketed portion and prayer clauses (d) and (e). The Notice of Motion is accordingly, disposed of. [ S.J. KATHAWALLA, J. ]