- 1 - 12.s.3840.2001 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.3840 OF 2001 Castrol Ltd. & Anr. ..Plaintiffs -Versus- Arihant Lubes Ltd. & Ors. ..Defendants .......... Mr.Hiren Kamod i/b Himanshu W. Kane for the Plaintiffs. None for the Defendants. .......... CORAM : S.J. VAZIFDAR, J. DATE : 4TH JULY 2011. P.C. This is an action for infringement of copyright and for passing off. The Plaintiffs have also claimed damages of Rs.5,00,000/-. 2 The plaintiffs carries on business of manufacturing and marketing a high grade lubricating oil, anti freezing compounds, hydraulic fluids, brake fluids etc. 3 The plaintiff markets its products in containers/packages bearing labels having a distinctive colour scheme of red, green and white with - 2 - 12.s.3840.2001 black lettering. The plaintiffs have furnished the sales figures of the products marketed in such containers. The sales in the year 1984 were over Rs.52 crores and same increased over the years and in the year 2000, it was 12,37 crores. The advertisement and promotional expenses also increased from over Rs.7 lacs in the year 1984 to about Rs.43 crores in the year 2000. 4 The plaintiffs’ case is that the purchaser of these products identified the entire get-up of the packages with the plaintiffs. The artistic work thereon was conceived and adopted by/on behalf of the plaintiffs. 5 The plaintiffs have examined one Murlidhar Balasubramanian by tendering his affidavit in lieu of examination-in-chief. On behalf of the plaintiffs documents have also been tendered, taken on record and marked as Exhibits. The defendants were absent. There was no cross examination. The mere comparison of the plaintiffs’ labels and the artistic work contained thereon with the defendants’ label establishes beyond doubt that the artistic work adopted by the defendants is of a slavish imitation of the plaintiffs’ artistic work against a white background. The striking similarity is the device of a scooter and with a character / caricature of a man in green, wearing a yellow helmet, yellow hand gloves and a yellow underwear over a green suit. The only difference between the two - 3 - 12.s.3840.2001 marks is the positioning of the scooter and the colour of the scooter. There could be no doubt that two works are deceptively similar. Above this, there are two broad strips of green and red. This has also been copied by the defendants in an almost identical manner. On the bottom of the label, the words are the same namely “For Smooth Ride”. The difference in colour is not significant. 6 The reverse of the labels are also similar although the name of the products are different. The manner in which the plaintiffs depicted their work establishes that the defendants have copied the plaintiffs’ artistic work. For instance, the names are written in red. Below the respective names, there are the words ‘SCOOTER 2T” in the defendants label and the words “SCOOTEK 2T” in the plaintiff’s label. The only difference in the defendants’ label is that the letter ‘K’ is substituted with the letter ‘R’, which is of no significance. The main features are also the same and written in the same manner except that there is an additional feature/quality mentioned in the defendants’ label. 7 The plaintiffs have therefore establishes a case for infringement and passing off. - 4 - 12.s.3840.2001 8 This leads me to a consideration of the claim for damages of Rs. 5,00,000/-. The plaintiffs’ came across the defendants’ goods in October 2001. An ad-interim order was passed on 13th November 2001. It is reasonable to presume that the defendants had been using the mark prior thereto. The defendants have deliberately remained absent. They have not filed a written statement. They have not even filed an affidavit-in-reply to the Notice of Motion. The plaintiffs would be justified in submitting that an adverse inference ought to be drawn against the defendants that if they had appeared and made the records available, the same would have indicated that they had benefited by more than the damages claimed by the plaintiffs. 9 The suit was dismissed against defendant no.2 for default. As defendant no.3 is the distributor, there is no warrant for passing any order against defendant no.3. The suit is, therefore, decreed in terms of prayers (a), (b), (c) and (i) against defendant no.1 only. Costs to be quantified as per rules. Refund of court fees, if any, as per rules. -