JUDGMENT
Badar Durrez Ahmed, J.
1. This suit was instituted for the infringement of copyright, passing off, damages, rendition of accounts and delivery up etc. The defendant initially appeared and stated that he will file a written statement. However, subsequently by an order dated 4.5.2005 the defendant was directed to be proceeded with exparte and thereafter he has not entered appearance in this case. The plaintiff was directed to lead ex parte evidence which he has led in the form of an affidavit and has also filed documents which are exhibited as Ex P1 to P11. The suit was filed and instituted on behalf of the plaintiff by Mr. Rajiv Behl who is the constituted attorney of the plaintiff. His power of attorney being exhibited as Ex. P1.
2. In September, 1990 the plaintiff started manufacture and marketing of medicinal preparations one of them being BETADINE Microbicidal Solution, consisting of a Povidone-Iodine combination, and the same is currently being marketed by the plaintiff in pack sizes of 50 ml, 100ml, 500ml and 1 litre bottles under the trademark BETADINE and has been extensively advertised by the plaintiff. Sample advertisements, brochures, pamphlets and other literature relating to the plaintiffs products are exhibited as Ex. P2 & P3. Some invoices of the plaintiff relating to the sale of the BETADINE Solution bottles are exhibited as Ex. P4. The BETADINE Microbicidal Solution IP of the plaintiff is stated to be marketed in bottles with distinctive labels bearing a unique colour combination, layout and get up. The said labels qualifies as original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957 and is also registered as such in favor of the plaintiff. The Copyright Registration Certificate in favor of the plaintiff bearing Registration No. …64764/2003 DATED 16.7.2004 is also exhibited as Ex.P7. The defendant manufactures Microbicidal Solutions in bottles with a label having an identical get up, layout and colour scheme as that of the plaintiffs BETADINE Solution bottles. A cash memo detailing the purchase of defendant’s product is also exhibited as Ex. P8 and the legal notice sent to the defendants as well as the A.D. card are exhibited as Ex.P10 & P11 respectively.
3. It is also clear that the plaintiff has been using the following colour combination on its BETADINE Microbicidal Solution:
(a) A while background with dark blue lettering printed on it.
(b) A sky blue stripe followed by a navy blue stripe on which the word Standardised is printed in bold.
4. The plaintiffs bottle is exhibited as Ex.P5 and that of the defendant is exhibited as Ex.P9. A comparison of the two bottles clearly shows that the defendant substantially copied the bottle of the plaintiff. Thereby the plaintiff has adopted an identical and/or substantially similar get up, lay out and colour combination on its Povidone Iodine Solution Bottle labels which would amount to the infringement of the copyright which vests with the plaintiff in the said label.
5. In these circumstances, the act and conduct of the defendant would amount to passing off and, therefore, the suit is decreed in terms of para 19(a) & (c) of the plaint. Insofar as the prayers contained in paragraphs 19 (b), (d) & (e) are concerned, the learned Counsel for the plaintiff does not press the same. As regards the prayer contained in paragraph 19(f) damages to the extent of 5,05,000 have been claimed.
6. The affidavit by way of evidence indicates that in the period January, 2003 to December, 2003 the plaintiffs sales figures in respect of the BETADINE Microbicidal Solution was to the extent of Rs. 21.92 crores and, therefore, I would consider the claim of damages to the extent of Rs. 5.05 lakhs on account of the amount of the defendant to be a reasonable estimate and accordingly a decree for damages to that extent be also drawn up.
The suit is accordingly decreed with costs.