G.S. Sistani JUDGMENT
G.S. Sistani, J.
1. None for the defendants. Written Statement has also not been filed; despite summons having been issued as far back as 24.08.2015, service effected on 05.12.2015 and vakalatnama filed on behalf of the defendants on 19.01.2016. The counsel for the plaintiff prays that the present case may be decreed by invoking the provisions of Order VIII Rule 10 of the Code of Civil Procedure. He further submits that there are sufficient documents on record and also the fact that the plaint is supported by an affidavit of the plaintiff, thus, it is not necessary to lead evidence.
2. The plaintiff has instituted the present suit praying inter alia for permanent injunction against the defendants restraining them from infringing its trademark, copyright, passing off, rendition of accounts, delivery up, damages etc.
3. As per the plaint, the plaintiff company has been engaged in the business of manufacturing and selling ayurvedic medicines, non-medicinal products, confectionary etc. since 1985 through its predecessor M/s. Nirog Pharmacy, a sole proprietorship of Mr. Anil Kumar Jain. Subsequently, Mr. Jain incorporated a Company under the name and style of Tapovan Ayur Pharma Pvt. Ltd. in 1995 and brought the business of M/s. Nirog Pharmacy under the same. The name of the company was later changed to its present form, i.e. Nirog Pharma Pvt. Ltd., in the year 2000.
4. The plaintiff claims to be the proprietor and owner of the trade marks 'Harigola' and 'Taravat'. The trademark 'Harigola' was originally coined and adopted by Mr. Jain under his proprietorship concern M/s. Nirog Pharmacy in the year 1985 and has been continuously and extensively used openly in the market since then. Similarly, the trademark 'Taravat' was coined and adopted by Mr. Jain in the year 1991 and has been extensively and continuously used since then. The trademarks 'Harigola' and 'Taravat' along with their variants are registered trademarks which are valid and subsisting. The details of the said trademark registrations are as follows:
5. The plaintiff submits that of the aforegoing marks, the marks in serial nos. 1, 2, 3 and 4 were initially filed by Mr. Jain and have been subsequently assigned in favour of the plaintiff company vide Assignment Deed dated 04.12.2001. The same have also been recorded by the Trade Mark Registry.
6. The plaintiff claims that the trademarks 'Harigola' and 'Taravat' along with their packaging including get up, lay out, colour combination are well-known as a result of the plaintiffs market leadership and reputation. Therefore, the plaintiff enjoys statutory rights by virtue of the trade mark registrations and common law proprietary rights arising from the goodwill and reputation associated with its trademarks as well as priority of adoption, long, continuous and extensive use of trademarks. The plaintiff has also detailed its sales figures under both the marks in paragraph 8 of the plaint.
7. The plaintiff also claims to be the proprietor of the artistic work in the 'Harigola' and 'Taravat' packaging/labels which bear unique and fanciful styles and are original artistic work within the meaning of section 2(c) of the Copyright Act 1957.
8. The facts leading to the filing of the present case are that the plaintiff, in the year 2010, learnt that certain goods, similar to that of the plaintiff, are being sold in the market bearing a similar mark as that of 'Taravat'. Goods were being marketed by the defendant No. 2 under the label 'Taravati'. Accordingly, the plaintiff had sent a cease and desist notice on 12.04.2010 as well as a reminder notice dated 25.05.2010. No response was received for the said notices; but at the same time, the infringing products were........