Infringement of trademark and copyright by adopting a deceptively similar trade mark and using a similar container layout and color scheme constitutes passing off and entitles the plaintiff to a permanent injunction.

( 1 ) BY way of the present suit, the plaintiff seeks permanent injunction and damages against the defendants. The plaintiff has also sought a decree for delivery up of all the infringing containers, blocks, dies, wrappers, packing material etc.

( 2 ) BRIEFLY the facts are that plaintiffs are engaged in processing of and trading in industrial lubricants, greases, brake fluids, wood preservatives, metal cleaning compounds, anti-freezing compounds, hydraulic fluids and like products in India. The plaintiff No. 1 is the registered proprietor of trademark "castrol" in respect of oils for heating, lighting and lubricating. The wora Castrol appears in an oblique script across the horizontal member of the white portion. The turnover of the plaintiffs runs into crores. The plaintiffs have also spent a large amount of money on advertising and publicity of Castrol products. The plaintiffs are also selling its products under the mark "castrol AP-3" in which the plaintiffs also enjoy copyright.

( 3 ) IT is stated that the defendants have adopted and used a similar trade mark bestrol in respect of Special AP-3 Greases which is similar to Castrol Ball Bearing Greases AP-3 in respect of get-up, layout and colour combination. By adoption and use of the trademark Bestrol and logo of Castrol as well as similar colour combination, get-up, size and features in respect of greases, the defendants have infringed the plaintiffs trademark and copyright. Thus, the defendants are calculated to cause loss and injury to the plaintiffs reputation and busines and dilute the distinctiveness of their trademarks and layout of their container.

( 4 ) HENCE the present suit. On summons of the suit having been served on the defendants, they appeared through Counsel and filed their written statement contesting the claim of the plaintiffs. However, on failure to appear, the defendants were proceeded exparte on 21. 9. 1998. Plaintiff was allowed and filed affidavitin evidence of Mr. A. G. Mohamed, sr. Manager-IP of the plaintiff No. 2 as PW1.

( 5 ) PW 1 has deposed that Mr. M. H. Thanawala was constituted attorney of plaintiff No. 1 and he was duly authorised to file and institute the suit against the defendants. The deponent has proved that plaintiff No 1 is the registered proprietor of the trade mark "castrol" in respect of oils for heating, lighting and lubricatings vide Trade Mark Registration Certificate Exh. P1. He has also proved that trademark "castrol" is also registered in respect of industrial oils and greases (other than edible oils, fats and essential oils) hydraulic fluids being oils, lubricants, fuels and illuminant vide registration certificate Exh. P2. The deponent has also proved that plaintiff has been spending a large amount on advertising their products under the trademark "castrol". He has also deposed that the plaintiffs are also selling its products under the "castrol AP-3" in which the plaintiffs are enjoying copyright. The deponent has also deposed that the artistic work of the tin container has been designed and drawn by the plaintiffs and thus the plaintiffs are the owners of the copyright in the said artistic work. He has deposed that the defendants have adopted and are using the mark "bestrol" in respect of Bestrol Special AP-3 grease. The trademark Bestrol is deceptively similar with the trademark Castrol. The defendants are also using the container with similar colour scheme, get-up, layout and colour combination with the mark Bestrol (Exh. P11 ). He has also deposed that the defendants use of the trademark Bestrol AP-3 and logo of Castrol on their container along with identical and similar colour scheme, get-up is an infringement of the rights of the plaintiffs. By adoption and use of the trademark Bestrol and the container, the defendants are passing off their goods as those the plaintiffs, which is causing loss and injury to the plaintiffs reputation and business.

( 6 ) ON a comparison of the trade mark of the