1 s1870-05 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1870 OF 2005 M/s.Hasmukhrai & Co. ....Plaintiff V/s. M/s.Koyal Enterprises & Ors. ....Defendants Mr.Ajraj Bagwe i/b Jehangir Gulabbhai & Bilimoria & Daruwalla for the Plaintiff. None for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 16TH SEPTEMBER, 2011. P.C. :- 1. This is an action for infringement of trade mark and copyright and passing off. 2. The plaintiff is a registered proprietor of the mark “SOCIETY TEA” under class 30. The defendants have adopted the mark “SONYTEA”. 3. The defendants are absent. The defendants’ mark “SONYTEA” is deceptively similar to the plaintiff’s mark “SOCIETY TEA” . There is a high degree of possibility of the word “SOCIETY” in the plaintiff’s mark being confused with the word “SONYTEA”. 4. The plaintiff has made out a case of infringement of 2 s1870-05 copyright and for passing off on the basis of the entire label used by the defendants. The sales figures (at Exhibit “F” to the plaint) furnished by the plaintiff establishes the enormous reputation and goodwill developed by the plaintiff. The same is also advertised at various places and sites in huge letters and in a prominent manner. 5. The defendants’ label affixed to the packaging containing its products is strikingly similar to the plaintiff’s label placed on its products. The labels are also used for promotional purposes. The general background, though not identical, is very similar. The colour in the center of the plaintiff’s label is only a darker shade of blue/gray. What is important is that the word “SOCIETY” in the registered mark is written in a prominent manner on the plaintiff’s label. The defendants have on their label placed the word “SONYTEA” in an identical lettering, colour and in an identical place. The plaintiff’s label contains the word “TEA” in red letters in a yellow rectangular band cutting through the letter “Y” in the word “SOCIETY”. The defendants have also written the word “TEA” in red letters in a yellow rectangular band, cutting across the last letter “A” in the word “SONYTEA”. There is no explanation for this. On the left hand side of the label, is a photograph of a teapot below which is a tea cup and below the same is a part of the face of lady holding the tea cup. The defendants’ mark has in the same location a photograph of a teapot and below that a cup of tea. 3 s1870-05 Above the teapot is the device of a oval shape with a sketch of a lady in silver carry a basket of tea. Above the same in a yellow band are the words “Society tea makes my day”. Similarly, in a yellow band above the defendants’ almost identical oval device are the words “Sonytea tea makes Freshness”. On the right hand side of the words “SOCIETY TEA” and “SONYTEA” are placed identically coloured and shaped tea cups and saucers on a similarly shaped tray. There are many other similarities which clearly establish the defendants’ intention to copy the plaintiff’s artistic work. The plaintiff’s artistic work has been slavishly imitated by the defendants. 6. The plaintiff has claimed only nominal damages in the sum of Rs.1,00,000/-. 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. 7. In the circumstances, the suit is decreed in terms of prayers (a), (b) and (c). Costs to be quantified as per rules. Refund, if any, as per rules.