1 nms3013-10 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3013 OF 2010 IN SUIT NO.2810 OF 2010 Jamba Juice Company ....Plaintiff V/s. P.K. Hospitality Services pvt. Ltd. & Anr. ....Defendants Mr.Salil Shah with Ms.Priyanki Sah i/b Wadia Ghandy & Co. for the Plaintiff. Mr.Vallabh Sawant i/b IRP Law Associates for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 1ST JULY, 2011. P.C. :- 1. This is an action for infringement of trade marks and copyright and for passing off. 2. The plaintiff is the registered proprietor of four marks. The first is a label mark. This comprises of the words “Jamba Juice” with the device of a coloured whirl below it in classes 32 and and 42 respectively. The words form an arc above the whirl. The plaintiff is also a registered proprietor of the word mark “JAMBA JUICE”. The fourth registered mark under classes 32 and 42 is that of the whirl alone. The plaintiff obtained the registrations with effect from 21.2.2007 and 23.5.2007. 3. The defendants have used an identical word mark and device with the whirl in the same colour as well. The defendants admittedly 2 nms3013-10 started using the same only in the year 2008 i.e. after the plaintiffs’ marks were registered. The defendants had filed an application for registration on 27.10.2008 in which the defendants stated “proposed to be used”. 4. In the circumstances, the plaintiffs have established their case for infringement of their registered marks. 5. There is no doubt that the word mark and device are identical. The defendants’ artistic work is identical to the plaintiffs. The defendants have offered no explanation whatsoever as to how they created the artistic work. The leaned counsel appearing on behalf of the defendants similarly stated that the design is a common to the trade. No evidence of common user of this design in the trade has been adduced. 6. Added to this is the fact that the word has been used in television channels, serials, and films in India including in the Hindi film with the title “Kabhi Alvida Na Kehna”. The case for infringement of copyright is also therefore, established. 7. In these circumstances, it is not necessary to consider the application on the basis of passing off at this stage. The plaintiffs are at liberty to apply for passing off, if necessary, including in the event of the defendants obtaining registration. The defendants in any event cannot claim ignorance of the plaintiffs’ marks as well as the plaintiffs’ artistic work. The plaintiffs’ marks having been registered, the defendants would have discovered the same, had a proper search been made prior to their using the same. In this view of the matter, I have not considered the other submissions raised by Mr.Shah. 8. The contention that this Court has no jurisdiction in view of 3 nms3013-10 section 62 of the Trade Marks Act, 1999 is covered against the defendants by the judgment of the Supreme Court in Exphar SA v. Eupharma Laboratories Ltd. AIR 2004 SC 1682. 9. In the circumstances, the notice of motion is made absolute in terms of prayers (a-i), (a-ii) and (a-iv). However, the material referred to in prayer (a-ii) shall be deposited with the Court Receiver, but shall not be destroyed at this stage. Prayer (a-iv) shall be complied with within eight weeks from today.