-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1424 OF 2006 IN SUIT NO.1206 OF 2006. Shalina Laboratories Pvt.Ltd. ..Plaintiff. v/s. Ronilo Pharma Pvt.Ltd. ..Defendant. .... Mr.A.H. Kane, i/b. H.W. Kane, for the Plaintiff. None for the Defendant. .... CORAM CORAM CORAM : S.J.KATHAWALLA, J. : S.J.KATHAWALLA, J. : S.J.KATHAWALLA, J. DATE DATE DATE : 16TH DECEMBER, 2008. : 16TH DECEMBER, 2008. : 16TH DECEMBER, 2008. P.C. P.C. P.C. 1. The plaintiff claims to be the registered owner of the trade mark "IBUCAP" for medicinal and pharmaceutical preparations. The plaintiff is also the registered holder of the copyright in the artistic work annexed at Exhibits ‘A’, ‘F-1’ and ‘F-2’ to the plaint. The plaintiff has alleged that the defendant is using the mark "IBUNCAPS PLUS" thereby infringing the plaintiffs registered trade mark "IBUCAP". The plaintiff has also alleged that the defendant by using, the carton which is similar/deceiptively similar to the plaintiff’s carton has infringed the copyright of the plaintiff in the artistic work shown at Exhibit "A" and Exhibit "F-1" and "F-2" to the plaint, i.e. the cartons of the plaintiff’s product. The plaintiff has also pointed out that the defendant’s carton is shown at Exhibit ‘G’ to the plaint -2- and a comparison of carton/packaging with the carton/packaging of the plaintiff at Exhibit ‘A, "F-1" and ‘F-2’ shows that the impugned carton at Exhibit "G" is a reproduction of the plaintiff’s artistic work or in any event reproduction of substantial part thereof, in a material form. The defendants have therefore, copied the artistic work of the plaintiff, thereby infringing the plaintiff’s copyright. He submitted that the impugned carton at Exhibit ‘G’ to the plaint is a slavish and flagrant imitation of the plaintiff’s cartons and the traders and consumers are being confused and deceived and/or are likely to be confused and deceived into buying the defendants goods as for the plaintiff’s well known goods. It is submitted that, therefore, the plaintiff’s actions in infringing the plaintiff’s trade mark as well as copyright and the passing off of the goods of the plaintiff is not only against the interest of the plaintiff but also against the public interest/ policy. 2. On 2nd May 2006, the plaintiff applied for ad-interim reliefs before this Court (Coram : N.S. Mhatre, J.) after serving the defendant with the papers and proceedings in the matter. However, the defendant did not remain present and an order dated 2nd May 2006 was passed in terms of prayer clauses ‘a’ to ‘c’ and ‘d’ of the notice of motion. After the said ad-interim order -3- dated 2nd May 2006, the Court Receiver visited the premises of the defendant and took custody of the infringed products which have been handed over to the plaintiff for safe custody. The Court Receiver has filed his report before this Court on 11th May 2006. 3. The notice of motion came up for final disposal before this Court on 17th October 2008, when none appeared for the defendant. The plaintiff was therefore, directed to give notice of the adjourned date in the matter, to the defendant and their advocates. M/s. JPS Legal Advocates have filed their appearance for the defendant. The plaintiff have filed an affidavit of service dated 15th December 2008, which is taken on record. However, even today, the defendant and their advocates are absent. 4. I have considered the submissions made on behalf of the plaintiff. From the Registration Certificates issued under the Trade Marks Act as well as the Copyrights Act which are produced before this Court, it is prima-facie established that the plaintiff are the registered holders of the trade mark "IBUCAP" and copyright in the artistic work contained in the cartons exhibited as ‘A’’ ‘F-1’ and ‘F-2’ to the plaint. I am prima-facie satisfied that the defendants are infringing -4- the plaintiff’s said trade marks and copyrights. I have also compared the cartons of the plaintiff at Exhibits ‘A’, ‘F-1’ and ‘F-2’ with that the carton of the defendant which is at Exhibit ‘G’ to the plaint and I am of the prima-facie view that consumers/dealers would certainly get confused and get an impression that the defendant’s products in the impugned cartons are that of the plaintiff. This would not only be against the plaintiff’s interest but would also be against public interest/ policy. 5. In the circumstances, the notice of motion is made absolute in terms of prayer clauses ‘a’, ‘b’ and ‘c’. The defendant to pay costs of this notice of motion to the plaintiff. The notice of motion stands disposed of. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]