JUDGMENT : S.J. KATHAWALLA, J. 1. This is an action taken by the Plaintiff for infringement of Trade Mark, Copyright and passing off committed by the Defendant. This suit has appeared under the caption “For Ex-parte Decree.” Though the writ of summons have been served on the Defendant, they failed to appear in the suit and the suit is therefore placed for Ex-parte Decree. The Plaintiff has tendered the evidence of Mr. Sunil Jailfalkar, Constituted Attorney of the Plaintiff company which is taken on record and marked “X-1” for identification. The deponent Mr. Sunil Jailfalkar has produced the authorization by way of a copy of the Power of Attorney dated 27th January, 2003 in his favour. The said document is annexed to the list of documents at S. No. 1. 2. The Plaintiff has stated that it is an existing company incorporated under the Indian Companies Act, 1913, having its registered office at the abovementioned address. The Plaintiff states that it was formerly known as Asian Paints (India) Limited, which name has since been changed to Asian Paints Limited. The Plaintiff has produced the fresh certificate of incorporation reflecting such change of name and the same is annexed at S. No. 2 to the list of documents. The Plaintiff states that it is India's leading and premier business house engaged, inter-alia, in the business of manufacturing and marketing paints, lacquers, varnishes, wall and wood fillers (putties), undercoats for paint in the form of primers, preservatives used to prevent rust and deterioration of wood, thinners, distempers, dry colours, colouring matter, dyestuffs, mordants, natural resins, metal in foil and powder form for painters and decorators and the like goods since last nearly six decades. The Plaintiff states that it is the pioneer and the market leader in the paint industry and is Well Known over the years for its superior quality products which are manufactured and marketed by them under its distinctive trade marks. 3. The Plaintiff has stated that in relation to the aforementioned goods, it is the prior adopter, honest bona-fide user and the registered proprietor of several trade marks viz. APCOLITE, ROYALE, TRACTOR, Device of GATTU, ASIAN PAINTS, APEX to name a few. 3. The Plaintiff has stated that in relation to the aforementioned goods, it is the prior adopter, honest bona-fide user and the registered proprietor of several trade marks viz. APCOLITE, ROYALE, TRACTOR, Device of GATTU, ASIAN PAINTS, APEX to name a few. Each of these trade marks have been continuously used by the Plaintiff since a long time upon and/or in relation to the aforementioned goods and the same have become distinctive of the goods of the Plaintiff by virtue of continuous use and registration. The Plaintiff has further stated that the trade mark ASIAN PAINTS is its house mark and the same appears on all its said goods and moreover the same occupies a leading, essential and prominent feature of the Plaintiffs corporate and business name. Over the years of continuous use in relation to the aforementioned goods, the Plaintiff have coined, invented and has adopted several trade marks, which are represented by them in distinctive artistic lay-out, get-up and colour scheme. Each of these trade marks are distinctive trade marks which by virtue of continuous use and publicity have come to be exclusively identified with the Plaintiff and none else. Two such trade marks honestly conceived and adopted by the Plaintiff are the trade marks GATTU (being the device of a boy holding a brush in his hand) and UTSAV which the Plaintiff has been using continuously since the year 1959 and 1992 respectively upto the present date. Since their adoptions in August 1959 and November 1992, the Plaintiff has used the said trade marks GATTU (device of boy holding a brush in his hand) and UTSAV respectively openly, widely and extensively all across India and the said trade marks have been widely publicized by the Plaintiff through various media of publicity. The Plaintiff has stated that the said trade marks GATTU (device of boy holding a brush in his hand) and UTSAV have become distinctive off its aforementioned goods in the trade and the Plaintiff has thus acquired valuable common law rights therein. 4. The Plaintiff has filed the present suit against the Defendant for infringement and passing off on the Plaintiffs statutory and common law rights in its said trade marks; for infringement of Plaintiffs registered copyright and for damages caused to the Plaintiff by the Defendant's unlawful conduct. 4. The Plaintiff has filed the present suit against the Defendant for infringement and passing off on the Plaintiffs statutory and common law rights in its said trade marks; for infringement of Plaintiffs registered copyright and for damages caused to the Plaintiff by the Defendant's unlawful conduct. The Plaintiff has annexed original poly-packs of its distemper sold under its distinctive trade mark UTSAV at S. No. 3 to the list of documents. 5. The Plaintiff has stated that it is the registered proprietor of the original artistic label of UTSAV under the provisions of the Copyright Act, 1957, vide registration No. A-52668/94 dated 30.09.1994. The copyright certificate in original is annexed at S. No. 4 to the list of documents. The Plaintiff is also the registered proprietor and owner of the trade marks GATTU (device of boy holding a brush in his hand), UTSAV and/or marks wherein the word UTSAV forms the leading feature, under numbers 219102, 579838, 588219, 1670416, 1670417, 1670418, 1670421, 1670425, 1670426, 1670428, 1670429 and 1670437 all in class 02. The said registrations are valid, subsisting and in force. The Plaintiff has annexed the legal proceeding certificates of its aforementioned registrations at S. No. 5 to the list of documents. 6. The Plaintiff has stated that the trade mark UTSAV has been in continuous use since November 1992 respectively and the goods sold thereunder have become distinctive off the Plaintiffs goods and have come to be associated both by the traders and the members of the public exclusively with the Plaintiffs merchandise. The Plaintiff has produced its statement sales and advertisement figures of UTSAV since the financial year 1993-94 till 2009-10 duly certified by the deponent Mr. Sunil Jailfalkar herein. The said document is annexed at S. No. 6 to the list of documents. The Plaintiff has further produced originals of sales invoices and advertisement cuttings randomly drawn, wherein the Plaintiffs goods are sold and advertised under its trade marks UTSAV bearing the device of GATTU. The same are collectively annexed to S. No. 7 to the list of documents. 7. The Plaintiff has stated that as a result of high quality of goods manufactured and marketed and owing to the extensive sales promotion and advertisement done by them, the goods sold under the trade mark UTSAV as artistically represented on its poly bags/pouches have acquired an unique, enviable reputation and exclusive goodwill. 7. The Plaintiff has stated that as a result of high quality of goods manufactured and marketed and owing to the extensive sales promotion and advertisement done by them, the goods sold under the trade mark UTSAV as artistically represented on its poly bags/pouches have acquired an unique, enviable reputation and exclusive goodwill. That the reputation and goodwill of the trade mark UTSAV extends far and wide and much beyond the scope of the actual goods manufactured by the Plaintiff and the very mention of the word UTSAV or GATTU or the Device of a boy holding a brush in his hand in the paint industry would ordinarily be co-related with the goods of the Plaintiff and none else. The Plaintiff has stated that it has been selling its aforementioned goods under the said trade marks UTSAV through a network of dealers all over India. Owing to such long use, registration and the unique goodwill and reputation generated therein, the use of the trade marks UTSAV and GATTU have acquired a distinctive connotation as being goods of the Plaintiff exclusively and any use of the said trade marks by any person, other than the Plaintiff and without the Plaintiffs permission, will lead to confusion and deception amongst the purchasing public and the trade. 8. The Plaintiff has stated that it has always been vigilant and diligent in protecting its trade mark and artwork of UTSAV from being copied and infringed. The Plaintiff has further stated that while it has been protecting its said trade mark UTSAV and artwork of UTSAV, it has also instituted necessary opposition proceedings against third parties who have time and again applied for registration of a mark which is deceptively similar to that of the Plaintiff. The Plaintiff has annexed a list of oppositions filed against various third parties at S. No. 8 to its list of documents. The Plaintiff has also stated that it has been diligently protecting its trade mark and artwork of UTSAV from being annihilated and has filed civil suits against third parties who have copied its mark and/or artwork and have succeeded in obtaining necessary injunctive reliefs from this Hon'ble Court. The Plaintiff has further stated that such infringing parties have also submitted to a decree in favour of the Plaintiff through the filing of necessary consent terms. The Plaintiff has further stated that such infringing parties have also submitted to a decree in favour of the Plaintiff through the filing of necessary consent terms. The Plaintiff has annexed copies of such Court orders and consent decrees obtained by the Plaintiff against such infringers at S. No. 9 to its list of documents. From the aforesaid it is clearly evident that the Plaintiff has tried its best to curb and stop its valuable Intellectual Property Rights in the said trade mark and artwork of UTSAV, from being usurped. 9. The Plaintiff has stated that in or about November, 2011 the Plaintiffs sales executives learnt of the use of the impugned mark “JAY UTSAV” under a pirated artwork in Ujjain, Madhya Pradesh which was manufactured by the Defendant. The Plaintiff has further stated that the distemper bearing the impugned mark and the pirated artwork were being sold surreptitiously and captively by small retail stores in cash for which no invoices were issued. The Plaintiff has produced a coloured copy of the Defendant's label which apart from bearing the impugned mark and pirated artwork also bears the Defendant's name and address and the same is at S. No. 10 to its list of document. 10. The Plaintiff has stated that the impugned mark “JAY UTSAV” has as its leading feature the word UTSAV and the impugned mark is reproduced on poly-packs/bags, meant for packing the said distemper, in an identical and/or substantially similar label as that of the Plaintiff. The Plaintiff has stated that the Defendant has exactly copied and imitated the original artwork and trade dress of the Plaintiffs UTSAV label. The Plaintiff has further stated that the impugned mark JAY UTSAV is deceptively similar to the trade mark UTSAV of the Plaintiff. The goods in respect of which the impugned mark is sought to be used by the Defendant is also identical to those of the Plaintiff. Infact a close perusal of the impugned mark clearly reveals that the Defendant has mischievously copied the mark of the Plaintiff by adding the word JAY in the prefix, which word however is written in small inconspicuous letterings when compared with the word UTSAV, which is undoubtedly the essential feature in the impugned mark. Infact a close perusal of the impugned mark clearly reveals that the Defendant has mischievously copied the mark of the Plaintiff by adding the word JAY in the prefix, which word however is written in small inconspicuous letterings when compared with the word UTSAV, which is undoubtedly the essential feature in the impugned mark. Further the impugned mark is adopted in an identical trade dress bearing a colour scheme, get up, lay out and artwork being a slavish imitation of and a blatant copy of the original artistic work and trade dress of the Plaintiff in its UTSAV label. Moreover the impugned label also depicts a Device of a boy holding a brush in his hand which caricature Device is closely similar to and is a copy of the Device of GATTU (viz. Device of a boy holding a brush in his hand) of the Plaintiff. In doing so obviously the intention of the Defendant is to infringe and pass off its goods bearing the impugned mark under a pirated artwork as the original goods of the Plaintiff. 11. I have gone through the averments made in the plaint and the documents annexed to the affidavit of evidence and list of documents of the Plaintiff and also heard the Learned Advocate for the Plaintiff. The document at S. No. 2 shows that the Plaintiffs were formerly known as Asian Paints (India) Limited and now they are known as Asian Paints Limited. The document at S. No. 4 shows that they are the registered proprietor of the original artistic work of UTSAV. Further the documents at S. No. 5 show that the Plaintiff is the registered proprietor of the trade mark “GATTU” and “UTSAV since 27th November 1963 and 26th August 1992 respectively. Further the said copyright and trademark registrations are valid and subsisting. The documents annexed at S. No. 6 reveals the Plaintiffs yearwise sales turnover and advertisement expenses incurred on its UTSAV branded distemper and the documents annexed at S. No. 7 show the use of the Plaintiffs mark and the publicity undertaken of its UTSAV distemper. Further the said copyright and trademark registrations are valid and subsisting. The documents annexed at S. No. 6 reveals the Plaintiffs yearwise sales turnover and advertisement expenses incurred on its UTSAV branded distemper and the documents annexed at S. No. 7 show the use of the Plaintiffs mark and the publicity undertaken of its UTSAV distemper. Further the documents at S. No. 8 is a list of oppositions filed against third parties seeking registration of marks being identical/deceptively similar to that of the Plaintiff and the documents at S. No. 9 are orders passed by this Hon'ble Court in favour of the Plaintiff for its trade mark UTSAV and both the said documents go on to reveal that the Plaintiff has been vigilant and proactive at all times to protect its Well Known trade mark and artwork of UTSAV from being usurped by infringers. 12. In assessing the similarity of the rival marks in the present case, no oral evidence is necessary. Comparison of the Plaintiffs mark with that of the Defendant's impugned mark shows that the Defendant's mark JAY UTSAV is phonetically, visually and structurally deceptively similar to the Plaintiffs registered trade mark UTSAV. Hence the use of the impugned mark JAY UTSAV by the Defendant constitutes infringement of the famous and registered trade mark UTSAV of the Plaintiff. The Defendant has also used a colour scheme, get-up, lay out, style, trade dress and artwork in relation to its poly bags/pouches which is substantially similar to the original artistic work, colour scheme, get-up, style and trade dress as used by the Plaintiff for its famous and well known trade mark UTSAV. Hence, the Defendant's use of the impugned mark “JAY UTSAV under the pirated artwork is illegal and constitutes infringement of the Plaintiffs registered copyright in its original artistic work of UTSAV. The Plaintiff has also established that it has acquired reputation and goodwill in its mark sufficient to maintain successfully an action for passing off. The use of a device of a boy holding a brush in his hand which device being closely similar to and being a copy of the Device of GATTU (viz. Device of a boy holding a brush in his hand) of the Plaintiff also amount to infringement of the Plaintiffs registered trade mark GATTU. 13. The Plaintiff has lead evidence of one Mr. Sunil Jailfalkar by filing his affidavit in lieu of examination-in-chief. Device of a boy holding a brush in his hand) of the Plaintiff also amount to infringement of the Plaintiffs registered trade mark GATTU. 13. The Plaintiff has lead evidence of one Mr. Sunil Jailfalkar by filing his affidavit in lieu of examination-in-chief. The witness confirms the correctness of the contents of the affidavit. 14. There is nothing on record that militates against anything that has been averred in the plaint and deposed to by the witness. 15. The Defendant was served with the writ of summons and an affidavit dated 15th June, 2012 proving service of the writ of summons, which is on record. However, the Defendant is absent. The Defendant has also not filed any written statement. The evidence of the witness is thus uncontroverted. 16. In the circumstances, the Plaintiff has established that Defendants' use of the impugned mark JAY UTSAV bearing a similar artwork alongwith the use of the Device of Boy in relation to their acrylic finish distemper colours, paints and other like goods used in the paint industry amounts to infringement of the Plaintiffs well known trade marks GATTU (device of boy) and UTSAV registered under Nos. 219102, 579838, 588219, 1670416, 1670417, 1670418, 1670421, 1670425, 1670426, 1670428, 1670429 and 1670437, all in class 02 u/s 29(1) and 29(2) read with Section 2(1)(zb) of the Trade Marks Act, 1999 and also amounts to passing off u/s 27(2) of the Trade Marks Act, 1999. The Plaintiff has further established that the use of the pirated artwork and label by the Defendant amounts to infringement of the Plaintiffs registered copyright u/s 51 of the Copyright Act, 1957. Accordingly, the suit is decreed in terms of prayer clauses (a), (b), (c) and (e). As regards prayer clause (d), the Defendant is directed to pay Rs. 50,000/- as and by way of punitive damages to the Plaintiff within 4 weeks of receipt of this order. These punitive damages are awarded to the Plaintiff considering the nature of infringement and with a view to dissuade others from indulging into such activities. 17. The Court Receiver shall destroy all the seized products in presence of the Plaintiffs representative and after such destruction, the Court Receiver shall be discharged of his duties. These punitive damages are awarded to the Plaintiff considering the nature of infringement and with a view to dissuade others from indulging into such activities. 17. The Court Receiver shall destroy all the seized products in presence of the Plaintiffs representative and after such destruction, the Court Receiver shall be discharged of his duties. The Office shall return the compilation of original documents to the Advocates for the Plaintiff upon the Advocates for the Plaintiff handing over a true copy of this Order alongwith photostat copies of the said compilation of documents duly certified as true copies.