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IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J.
NOTICE OF MOTION NO.4429 OF 2007INSUIT NO.3221 OF 2007Ranbaxy Labratories Limited. ...Plaintiff.Vs.M/s.Universal Twin Labs. ...Defendant.....Mr. M.P. Rao with Mr. H.P. Singh, Ms. Henal Vakharia, Ms.DeeptiTrivedi and Ms.Deepti Adhav i/b. Henal Vakharia & Asso. for thePlaintiff.Mr.Virag Tulzapurkar with Mr. Ashish Kamath i/b. M/s. Bharat Shah &Co. for the Defendant...... 
CORAM :DR.D.Y.CHANDRACHUD, J
.January 30, 2008.
JUDGMENT
:The Plaintiff is the registered proprietor of a trade mark,“VOLINI”, in respect of medicinal and pharmaceutical preparationsfalling in class 5 of the Schedule to the Trade Marks Rules. Theregistration continues to be valid and to subsist on the register.VOLINI which is a word mark, is used by the Plaintiff for an ointmentwhich is stated to provide relief from pain, swelling and inflammation.
 
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The mark has been used continuously since 1994. The Plaintiff has,incidental thereto, prepared and used labels and promotional materialadopting the mark. The sales figures and promotional expensesbetween the years 2003 and 2006 are disclosed in the plaint to bethus:“Sales Figures2003 - Rs. 215.30 million2004 - Rs. 246.80 million2005 - Rs. 301.80 million2006 - Rs. 382.60 millionPromotional expenses2003 - Rs. 17.49 million2004 - Rs. 25.86 million2005 - Rs. 26.02 million2006 - Rs. 23.30 million.”In an affidavit filed on 19
th
January 2008, certain additional facts havebeen disclosed. The Plaintiff has relied upon ORG IMS data,
 
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according to which, the product in question, ranked first amongtopical analgesics, anti-rheumatics and non-steroidal anti-inflammatory drugs. The approved budget on promotional expensesfor the year 2008 is Rs. 127.3 million. The mark has beenextensively advertised on the electronic and print media. The salesfigures for 2007 were estimated at Rs. 404.7 million. The product hasa market share of 28.34%.2. The sale of the product has taken place in cartons onwhich the mark VOLINI appears in a bold typeface. The lettersconstituting the mark are printed in mauve with a white background.The name of the Plaintiff is inscribed on the side of the carton andalong side a logo of what is described as “a running person” isprinted. The words “A Multi action Topical Gel” appear on the carton.On one side of the carton, there are four line diagrams furnishing avisual indicator of a person depicted to have pain in the lower back, joint pains and a strain of a muscular nature. Each carton has adistinctive colour scheme, get up and layout. The Plaintiff claims that
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