1 s333-06 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.333 OF 2006 Procter & Gamble Hygiene & Health Care Ltd. & Anr. ....Plaintiffs V/s. Haryana Punjab Pharmacy ....Defendants Mr.Nishad Nadkarni for the Plaintiffs. None for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 23RD SEPTEMBER, 2011. P.C. :- 1. This is an action for infringement and passing off. The plaintiff is the registered proprietor of the mark “VICKS”. The defendants have adopted the mark “VIKAS”. In an interim order dated 28.8.2006 in Notice of Motion No.344 of 2006, I observed that the marks are visually and phonetically deceptively similar. The defendants have also infringed the plaintiff’s copyright, which is evident from a comparison of Exhibit “O” which contains the defendants’ work with the plaintiff’s work, which is at Exhibit “M”. The entire get up is an imitation. For instance, the defendants have used a green border on either side of the package. The device of a triangle with curved points is the same. The red band at the lower tip of triangle is the same. The 2 s333-06 placement of the triangle is the same. 2. The sales figures furnished by the plaintiff establish the enormous reputation that the plaintiff has developed in the said marks. 3. The defendants are absent. There is no written statement. There is nothing on record that militates against the averments and submissions contained in the plaint. 4. The plaintiff has claimed damages of Rs.5,00,000/-. Considering the fact that this is not the first occasion the defendants have infringed the trade mark and copyright as well as passed off their goods as those of the plaintiff, I am inclined to grant the same. I am also 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. 5. In the circumstances, the suit is decreed in terms of prayers (a), (b), (c), (d), (e) and (l). 6. Costs to be quantified as per rules. Refund, if any, as per rules. 7. Prayer (e) shall be complied with within eight weeks of being served a copy of this order upon the defendants. 8. Considering that in respect of the goods seized by the Court Receiver, no application had been made during the pendency of 3 s333-06 the suit by the defendants for return of the goods, the ends of justice would be met by permitting the plaintiff to destroy the same. The goods seized by the Court Receiver were placed in the custody of the plaintiff as an agent of the Court Receiver. The plaintiff shall however not destroy the goods until after a period of eight weeks after the expiry of the period of limitation for filing an appeal against this order and judgment. In the event of the order being implemented, in terms of prayer (e), the Court Receiver shall without further orders, stand discharged without passing accounts but subject to payment of his costs, charges and expenses.