1 nms1791-10 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1791 OF 2010 IN SUIT NO.1801 OF 2010 Lupin Limited ....Plaintiff V/s. Ovation Remedies & Anr. ....Defendants Mr.Amit Jamsandekar i/b India Law Services for the Plaintiff. None for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 10TH JUNE, 2011. P.C. :- 1. This is an action for infringement and passing off. 2. The plaintiff is the registered proprietor of the marks L-CIN 250 and L-CIN 500. Both the marks were registered on 22.5.2002. The plaintiff has used the marks at least since then. The plaintiff has also used the mark L-CIN in conjunction with other marks. However the word L-CIN forms a prominent part thereof in each case. 3. The sales of the plaintiff’s products using the said marks and the mark L-CIN in conjunction with other marks have been increasing rapidly since the year 2002. The aggregate sales up to April, 2010 was about Rs,132,80,00,000/-. The plaintiff has expended large amounts to promote the said products during this period aggregating to Rs. 18,26,00,000/-. The plaintiff has therefore, established its reputation in the 2 nms1791-10 marks. 4. The defendants use the mark “ELCIN-OZ” and “Elcin-OZ”. The defendants’ mark is ex-facie deceptively similar visually and phonetically to the plaintiff’s mark. The pronunciation of the two marks or at least the prominent part thereof is identical. The addition of the letter “E” makes no difference as the letters “EL” and letter “L” are pronounced in the same manner. 5. The defendants have not filed an affidavit in reply. The learned counsel for the plaintiff has tendered a letter dated 16.7.2010 received by them from the defendants, taken on record and marked “X”. After the suit was filed, the defendants have denied the allegations made in the plaint. However, the letter concludes as follows :- “7. It is only the initial stage of launching the product by our client and there is no intention of any infringement or passing off. 8. That we do not want to get into unnecessary litigation and are requesting our drug authority for cancellation of this brand, the copy of letter to the Drug Licencing Authority for discontinuation of the brand name “ELCIN-OZ” is enclosed herewith. We hope that this will satisfy you and you will drop the case filed against us.” The defendants however, are absent today. 6. In the circumstances, the notice of motion is made absolute in terms of prayers (a) and (b).