1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2633 OF 2006 Parle Products Ltd .. Plaintiffs -versus Ruchi Bakers Pvt.Ltd .. Defendants Mr. Amit Jamsandekar with Miss Deepa Hate i/b Gajria & Co. for the plaintiffs. Mr. Vichare, Representative on behalf of Court Receiver. CORAM: R. G. KETKAR, J. DATED: 21st August, 2009. P.C. 1. The plaintiffs are company incorporated under the Companies Act, 1956, having its registered office at Nirlon House, 254B, Dr. A. Besant Road, Mumbai 400 025. The plaintiffs are engaged in the business of manufacturing and marketing a variety of products including biscuits, confectionery etc. The plaintiffs have set out their activities and also details about engaging 2 services of advertising agency namely Everest Brand Solutions Private Limited. It is the case of the plaintiffs that said advertising agency created unique and artistic label in respect of their Digestive Marie biscuits. The said label is original creation having distinctive copyrightable features. They have used said artistic label in respect of wrappers for their Digestive Marie biscuits. They have annexed copies of wrappers bearing said artistic work at Exhibit B-1 and B-2. 2. The plaintiffs have advertised extensively the products manufactured by them packed in wrappers bearing said artistic work on various media including television, magazines, newspapers etc all over the country by spending huge amount on the advertisements. The case of the plaintiffs is that said labels bearing artistic work with the getup, colour scheme and layout have acquired distinctiveness and are associated solely with the plaintiffs. The goodwill in the said labels by virtue of the extensive use, extensive publicity large volume of sales and excellence in quality, the said 3 products sold in wrappers bearing the said artistic work have come to be exclusively associated with the plaintiffs by the traders and public at large. The plaintiffs enjoy statutory and common law rights to the exclusive use of the said artistic work of the said label. The case of the plaintiffs is that defendants label/wrapper is an almost exact copy of the plaintiffs’ label/wrapper bearing identical artwork, colour scheme, lay out and placement of objects. The plaintiffs have annexed at Exhibit D a copy of the defendants wrappers/label. 3. The plaintiffs came out with a case that the defendants are manufacturing and selling spurious and counterfeit goods by copying the plaintiffs’ artistic work. The defendants label/wrapper is very much similar to the plaintiffs’ label/wrapper that it is almost impossible for the common man to distinguish the Defendants’ goods from those of the plaintiffs. The case of the plaintiff is that the defendants are guilty of infringing their copyright and are also guilty of passing off their product as and for the products on the plaintiffs. On these among other 4 grounds, plaintiffs instituted the above suit. 4. The plaintiffs have instituted this suit for perpetual injunction restraining the defendants from infringing copyright of the plaintiff in the original artistic work described in Exhibit B-1 and B-2 to the plaint, by reproducing the same in any material form or publishing or using the same or any colourable imitation thereof so as to infringe the copyright of the plaintiffs in the original artistic work. The plaintiffs also claimed perpetual injunction restraining the defendants from using in any manner label described in Exhibit D to the plaint or any identical to or deceptively similar to the plaintiffs labels described in Exhibits B1 or B-2 to the plaint. The plaintiffs also prayed damages quantified at Rs.1,00,000/- and in the alternative direction to the defendants to render a true and faithful account of all the profits earned by them by using the impugned label and the defendants be further ordered and decreed to pay to the plaintiffs such amount as may be found due and payable on such account being taken. Finally the plaintiffs claim that 5 defendants, their agents, servants, and distributors be ordered and decreed to deliver up for destruction, to the Plaintiffs or their authorised representative or attorney all the products, labels, cartons, material, boards, goods or things bearing the impugned label or any other label identical to or deceptively similar to the Plaintiffs’ labels described in Exhibits B-1 and B-2 to the plaint. 5. The plaintiffs took out Notice of Motion No.3248 of 2006. By order dated 26th September,2006 this Court ( S.J. Vazifdar, J) granted ad interim order in terms of prayer clauses (a) and (c) except words bracketed in red, “destroy, erase”. 6. At the time of hearing, learned counsel for the plaintiffs did not press prayer clause (c) of the plaint. Learned counsel for the plaintiffs invited my attention to the affidavit dated August l8, 2009 sworn by Shri. Vrushal Uttarde, Legal Executive and Authorized Signatory of the plaintiffs, annexing therewith the communication dated 16th November 2006, addressed by Daswani & Daswani, on behalf of defendants and in 6 particular in paragraph 7 of the said communication which reads thus: “Being law abiding citizens our clients do not wish to fight this case and in this connection we send herewith a copy of our letter dated November 06, 2006.” 7. Despite service nobody appears for the defendants. Considering the averments made in the plaint as also earlier order dated 26th September,2006, passed by this Court and the letter dated 16th November, 2006, addressed on behalf of defendants, communicating that they do not desire to fight out the case which implies that they are submitting to the prayers made in the plaint, the plaintiffs are entitled to a decree. 8. It is brought to my notice that pursuant to the order dated 26th September, 2006, the Court Receiver took possession of impugned products on 3.11.2006. It is, therefore, submitted that appropriate directions be given to the Court Receiver to hand over the impugned products to plaintiffs so as to enable them to destroy the 7 same. The Representative on behalf of Court Receiver Mr S.A. Vichare, submits that the Court Receiver may be discharged after deducting the cost, charges and expenses of the Court Receiver from the amount deposited by the plaintiffs. He makes a statement that he will determine these charges within a period of one week from today and will hand over the impugned products within one week thereafter. 9. Considering all the above aspects, I deem it appropriate to pass a decree in terms of prayer clauses (a), (b) and (d) of the plaint. Hence the following order. ORDER I) The plaintiffs’ suit stands decreed in terms of prayer clauses (a), (b) and (d) of the plaint with no order as to costs. II) The Court Receiver is directed to hand over the impugned products to the plaintiffs within two weeks from today after determining its costs charges and expenses, subject to the adjustment 8 III) After handing over the impugned products to the plaintiffs, the Court Receiver shall stand discharged. IV)Decree be drawn accordingly. (R.G. KETKAR, J)