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Fdc Limited vs.mr Anuj Pareek & Ors - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
AppellantFdc Limited
RespondentMr Anuj Pareek & Ors
Excerpt:
$~42. * + % in the high court of delhi at new delhi cs(comm) 971/2016 judgment dated27th october, 2016 fdc limited through : ms. shwetasree majumdar with mr. ..... plaintiff prithvi singh, advs. versus coram: mr anuj pareek & ors through: none ..... defendants hon'ble mr. justice g.s.sistani g.s.sistani, j (oral) 1. the plaintiff has filed the present suit for permanent injunction restraining infringement of trademark, copyright in packaging, passing off, rendition of accounts, delivery up, damages, etc.2. summons in the suit were issued on 09.09.2015, on which date an ad interim ex parte injunction was also granted in favour of the plaintiff and against the defendants. on the same date, two local commissioners were also appointed. the reports of the local commissioners are on record......
Judgment:

$~42. * + % IN THE HIGH COURT OF DELHI AT NEW DELHI CS(COMM) 971/2016 Judgment dated27th October, 2016 FDC LIMITED Through : Ms. Shwetasree Majumdar with Mr. ..... Plaintiff Prithvi Singh, Advs. versus CORAM: MR ANUJ PAREEK & ORS Through: None ..... Defendants HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J (ORAL) 1. The plaintiff has filed the present suit for permanent injunction restraining infringement of trademark, copyright in packaging, passing off, rendition of accounts, delivery up, damages, etc.

2. Summons in the suit were issued on 09.09.2015, on which date an ad interim ex parte injunction was also granted in favour of the plaintiff and against the defendants. On the same date, two local commissioners were also appointed. The reports of the local commissioners are on record. Thereafter on 19.11.2015 and 15.02.2016, this court observed that all the defendants had been duly served and none appeared on their behalf, the defendants were proceeded ex parte. The plaintiff has also filed the ex parte evidence of one, Mr. Ravi Kiran Heravatta, who has deposed on the lines of the plaint.

3. As per the plaint, the plaintiff company started its operations in the year 1936 marketing vitamins and a range of prescription formulations and CS(COMM) 971/2016 Page 1 of 19 set up its first manufacturing facility in the year 1949. In the year 1963, the plaintiff became the first organization to start the manufacture of specialized ophthalmic formulations in India apart from being the first organization to introduce the BFS (Blow-Fill-Seal) technology for ophthalmics in South-East Asia in 1963.

4. On 24.06.1985, the plaintiff‟s name was changed from „Fairdeal Corporation (Pvt.) Ltd.‟ to its current form, i.e. „FDC Pvt. Ltd.‟ Thereafter, the plaintiff company became a deemed public company under the provisions of the Companies Act, 1956 and accordingly, the name was changed to the present name by deleting the word „Private‟ with effect from 16.09.1988.

5. As per the plaint, the plaintiff since the year 1984 has introduceda number of new molecules for the first time in India. The plaintiff claims that it has a distinct presence in numerous therapeutic segments such as anti-infectives, dermatologicals, respiratory, haematinics and is the undisputed leader in ORS and ophthalmics. The plaintiff, presently has around 6 manufacturing facilities in India along with distribution centres spread across the entire nation.

6. The plaintiff claims to have always endeavoured to keep abreast with the latest trends in product development and constantly evolves products with new molecules and dosage forms. The Plaintiff has four separate Research &Development Laboratories for formulations, food products, Active Pharmaceutical Ingredients (API), biotech and genetic research. For the development of Flurbiprofen and Timolol Maleate, the plaintiff has also been awarded the “National Award for R&D effort in the industry” by the Department of Scientific Affairs, Ministry of Commerce, Government of India. CS(COMM) 971/2016 Page 2 of 19 7. The plaintiff claims to have extensive sales all over India, which is evidenced from its annual turnover. The plaintiff‟s annual turnover from sales within India in the year 2013-14 was Rs. 717 crores (approx.) and grew to Rs. 850 crores (approx.) in the year 2014-15. Besides domestic marketing, the plaintiff exports Active Pharmaceutical Ingredients (API) to a number of countries including countries like USA, Canada, Europe and Japan.

8. The plaintiff has filed the present case protecting his rights under the marks „Electral‟ and „Enerzal‟. ‘ELECTRAL’ 9. As per the plaint, in the year 1972, the Plaintiff adopted the trade mark „ELECTRAL‟ in respect of a medicinal and pharmaceutical preparation, Oral Rehydration Salt (in short „ORS‟), described as “an oral formulation of physiologically important electrolytes in a granular carbohydrate base.” The said preparation is mainly used for dehydration in case of loss of water from the body due to diarrhoea, dysentery, shock, etc. During the same year, the plaintiff adopted the unique white and green rectangular package. The specific package used in it specific form has been adopted in 2006, the features of which are detailed in paragraph 9 of the plaint. The plaintiff claims it to be its original artistic work under S.2 (c) of the Copyright Act.

10. As per the plaint, the plaintiff has spent considerable resources in promoting „Electral‟ over the last 4 decades. On account of the plaintiff‟s promotional efforts, Electral is extremely popular among the purchasing public in India. Electral also controls a major chunk of the ORS market, holding over 66% share of market in India. The plaintiff has detailed the audited sales and promotional expenses of the last 10 CS(COMM) 971/2016 Page 3 of 19 years in respect of products marketed under its trademark „Electral‟ in paragraph 10 of the plaint. ‘ENERZAL’ 11. In addition to „Electral‟, the plaintiff also claims to be owner of the mark „ENERZAL‟. As per the plaint, the said trademark was adopted in year 1999 in respect of energy drinks, described as “health supplements”. The Plaintiff offers under its trademark „Enerzal‟, a balanced energy drink that replaces energy and body salts lost during day-to-day activities and offers instant and sustained energy along with vital salts helping to recover faster, work longer and perform better. It is used by people of all age groups especially by those who are tired due to walking, driving, traveling, heat, those involved in sports and fitness activity, those who want to prevent hangovers and jet lag and those recovering from fever, chronic illness and surgery. Further, the plaintiff claims that the details pertaining to the plaintiff‟s product „Enerzal‟ are available on its website, www.enerzal.com.

12. Enerzal (its orange flavoured variant) was previously sold in an orange, yellow and blue square package. The plaintiff has used the same continuously and extensively ever since, with slight variations from time to time. The specific package proprietary to the plaintiff which is relevant to the present suit and described below was adopted in the year 2014 and claims to be the original artistic work within the meaning of Section 2(c) of the Copyright Act 1957.

13. As per the plaint, the p laintiff has promoted „Enerzal‟ as an energy drink and has devoted a lot of time, effort and money to help the product build product recognition, goodwill and reputation. The audited CS(COMM) 971/2016 Page 4 of 19 sales and promotional expenses of the product from the year 2004 to 2015 have been detailed in paragraph 13.

14. In order to protect its trademarks, the plaintiff has registered numerous trademarks with the Trade Marks Registry, which have been renewed from time to time and are accordingly, valid and subsisting. The details of such registrations are as under: Trade Mark Registration No.Date Class ELECTRAL (word mark) ELECTRAL (label mark) 251636 12.09.1968 356663 19.12.1979 ELECTRAL (label) 556305 12.08.1991 ELECTRAL (label) 992944 26.02.2001 ELECTRAL (label) 737313 12.03.1997 ELECTRAL (label) 1455967 01.06.2006 ENERZAL84211 22.02.1999 5 5 5 5 5 5 5 ENERZAL (LABEL) 1467742 07.07.2006 32 Mango Flavor ENERZAL (LABEL) Lemon ice tea flavor 1467743 07.07.2006 32 ENERZAL (LABEL) 1467744 07.07.2006 32 Orange flavor ENERZAL (label lime) 987885 05.02.2001 29 CS(COMM) 971/2016 Page 5 of 19 ENERZAL (label orang) 987888 05.02.2001 29 15. It is the case of the plaintiff that the defendants have adopted and are using the marks „ENERGEM‟ and „ELACTROGEM‟. The plaintiff submits that in the month of August, 2015, the plaintiff learnt that the defendants are marketing their products under the infringing marks. Accordingly, the plaintiff hired a private investigator, whoinformed that the addresses mentioned on the packaging of the products were also false.

16. During the course of investigation, the plaintiff learnt that the defendants nos. 1, 2 and 3 are the manufacturers of the infringing products; while the defendant nos. 4 and 5 are the distributors of the products.

17. The plaintiff submits that the defendants mala fidely had adopted the mark „ELACTROGEM‟ in respect of identical goods, i.e. ORS. The packaging of the goods is also similar as not only the colour combinations, but also the fonts, positioning, description, etc. of the product of the plaintiff has been copied.

18. The plaintiff‟s submissions in respect of „ENERGEM‟ are also similar. The marks are similar; the packaging is a slavish imitation of that of the plaintiff; the goods are identical; etc. The plaintiff has given an elaborate comparison of the marks and packaging of the goods in paragraphs 19 and 21 of the plaint.

19. Accordingly, the counsel for the plaintiff submits that this clearly establishes the mala fide intention of the defendants to free-ride upon the goodwill of the plaintiff by portraying their goods in a manner as to they originate from the plaintiff. She has further submitted that the CS(COMM) 971/2016 Page 6 of 19 defendants have also mentioned an incorrect addresses upon their products in violation of the Legal Meterology Act, 2009 and the Drug and Cosmetics Act, 1940. The counsel submits that no notice was sent to the defendants as the same would of extended an opportunity to go underground or change their modus operandi.

20. I have heard the learned counsel for the plaintiff as well as perused the plaint and the evidence on record. The present action of the plaintiff is premised on three wrongs: infringement of trademark, infringement of copyright and passing off. All the defendants are ex parte and the plaintiff has also led evidence of one, Mr Heravatta, who has deposed on the lines of the plaint. As mentioned earlier, two local commissioners were also appointed by this court, who have seized large quantities of the goods of the defendants. I deem it appropriate to deal with the contentions of the plaintiff under separate heads. INFRINGEMENT OF TRADEMARK AND COPYRIGHT21 Based on the documents placed on record, there is no doubt that the plaintiff is the registered proprietor of the trademarks mentioned in paragraph 14 aforegoing.Section 29 (2) of the Trade Marks Act stipulates the conditions when usage by a person amounts to infringement of a registered trademark. Section 29 (2) reads as follows: “(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of— (a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or CS(COMM) 971/2016 Page 7 of 19 (b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or (c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.” (Emphasis Supplied) 22. In respect of the test of adjudicating infringement, a coordinate bench of this Court in The Royal Bank of Scotland Group PLCv.Sharekhan Limited, 216 (2015) DLT197 after taking into consideration numerous judicial pronouncements, held as under: “35. The test of comparison of the marks side by side is not a sound one since a purchaser will seldom have the two marks actually before him when he makes his purchase. The eye is not an accurate recorder of visual detail and marks are remembered by general impression or by some significant detail rather than by any photographic recollection of the whole. While judging the question as to whether the defendants have infringed the trade mark by colourable imitation of the mark or not, the Court has to consider the overall impression of the mark in the minds of general public and not by merely comparing the dissimilarities in the two marks.

36. In order to establish infringement, the main ingredients of Section 29 of the Act are that the plaintiff's mark must be registered under the Act; the defendant's mark is identical with or deceptively similar to the registered trade mark; and the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The rival marks are to be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trademark is likely to deceive and cause confusion as the registration shows the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as CS(COMM) 971/2016 Page 8 of 19 indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If Court finds that the defendant's mark is closely, visually and phonetically similar, even then no further proof is necessary. Test of comparison of rival marks 37. (i) In Pianotist Co. Ltd.'s application, 1906 (23) R.P.C. 774, it was observed as follows :

"You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion- that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods-then you may refuse the registration, or rather you must refuse the registration in that case."

… (iii) In the case of Sandow Ltd.'s Application, 31 R.P.C. 205 it was clarified that among the surrounding circumstances to be taken into account, one of considerable importance is the imperfect recollection a person is likely to have of a mark with which he is only vaguely acquainted. While approving the above tests for comparison of the two word-marks, the Supreme Court held in F. Hoffmann-La Roche & Co. Ltd. Vs. Geoffrey Manner & Co. Pvt. Ltd. (1969) 2 SCC716that:

"It is also important that the marks must be compared as whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause CS(COMM) 971/2016 Page 9 of 19 deception or confusion or mistake in the minds of persons accustomed to the existing trade mark."

(iv) In the case of Tokalon Ltd. v. Devidson and Co. 32 R.P.C. 133, it was observed that:

"...We are not bound to scan the words as we would in a question of compatriotic literarum. It is not a matter for microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into a shop."

… (vii) In the decision reported in AIR1951Bom 147, James Chadwick & Bros. Ltd. v. The National Sewing Thread Co. Ltd. Chagla C.J.

and Bhagwati, J.; referring to the words "likely to deceive or cause confusion" in section 10 of the Act observed as follows:-

""Now in deciding whether a particular trade mark is likely to deceive or cause confusion, it is not sufficient merely to compare it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the former trade mark. What is important is to find out what is the distinguishing or essential feature of the trade mark already registered and what is the main feature or the main idea underlying that trade mark, and if it is found that the trade mark whose registration is sought contains the same distinguishing or essential feature or conveys the same idea, then ordinarily the Registrar would be right if he came to the conclusion that the trade mark should not be registered. The real question is as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing. It is impossible to accept that a man looking at a trade mark would take in every single feature of the trade mark. The question would be, what would he normally retain in his mind after looking at the trade mark?. What would be the salient feature of the trade mark which in future would lead CS(COMM) 971/2016 Page 10 of 19 …” him to associate the particular goods with that trade mark?."

23. In the present case, a comparative analysis would clearly show a similarity between the marks. The marks of the parties are reproduced (Emphasis Supplied) below: PLAINTIFF’S MARK DEFENDANTS’ MARK ENERGEM ENERZAL24 From the aforegoing, it is clear that there is a similarity between the marks: structurally, visually and phonetic. It is settled law, that the marks should not be meticulously compared side by side as it is not possible for the consumer to have an opportunity to do the same.

25. It is also clear that the defendants have applied the marks for identical goods; „Energem‟ and „Enerzal‟ have been used for energy drink.

26. In respect of the other marks, „Electral‟ and „Elactrogem‟, there is sufficient dissimilarities between them; therefore, they cannot be said to be similar word marks simplicitor. Accordingly, the plaintiff has alleged the infringement of the label mark of „Electral‟ and not the word mark. On a comparison of the labels of the two products the similarities are quite evident. The colour pattern, font, descriptions, etc. have been slavishly imitated by the defendants. Therefore, the defendants have infringed the registered marks of the plaintiff in „Energem‟ and the label mark of „Enerzal‟.

27. Additionally, the plaintiff has claimed infringement of copyright in the packaging of the products, which it claims to be its original artistic works. CS(COMM) 971/2016 Page 11 of 19 28. In view of the averments in the plaint, which go unrebutted, I am of the view that the plaintiff is the owner of the copyright in the packaging of the products.

29. Having held so, an analysis of the products of the parties shows that the defendants have slavishly imitated the packaging of the plaintiff. I hold so as the unique and distinctive arrangement of features, colour combination, product get-up, layout and text has been used without the consent/ license of the plaintiff. PASSING OFF30 The term „passing off‟ was explained by James, L.J.

in Singer Manufacturing Co. v. Loog, (1880) 18 ChD395as under: “…I have often endeavoured to express what I am going to express now (and probably I have said it in the same words, because it is very difficult to find other words in which to express it) — that is, that no man is entitled to represent his goods as being the goods of another man; and no man is permitted to use any mark, sign or symbol, device or other means, whereby, without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a lie or to make a false representation to somebody else who is the ultimate customer.” (Emphasis Supplied) 31. Lord Diplock in Erven Warnink Besloten Vennootschap v. J.

Townend & Sons (Hull) Ltd.,[1979]. A.C731had identified five essentials to establish an action of passing off. The relevant excerpt is as under: “My Lords, A.G Spalding and Brothers v. A. W. Gamage Ltd., 84 L.J.Ch 449, and the later cases make it possible to identify five characteristics which must be present in order to create a valid cause of action for passing off: (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to propsective customers of his or ultimate consumers of goods or services CS(COMM) 971/2016 Page 12 of 19 supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.” (Emphasis Supplied) 32. The aforegoing essentials have been accepted by the Supreme Court in Cadila Health Care Ltd.v.Cadila Pharmaceuticals Ltd., (2001) 5 SCC73and Heinz Italiav. Dabur India Ltd., (2007) 6 SCC1 In Cadila Health Care Ltd. (Supra), the Supreme Court had further laid down the following decisive tests for checking deceptive similarity: “35. Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered: (a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works. (b) The degree of resembleness between the marks, phonetically similar and hence similar in idea. (c) The nature of the goods in respect of which they are used as trade marks. (d) The similarity in the nature, character and performance of the goods of the rival traders. (e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. (f) The mode of purchasing the goods or placing orders for the goods. (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.

36. Weightage to be given to each of the aforesaid factors depending upon facts of each case and the same weightage cannot be given to each factor in every case.” (Emphasis Supplied) CS(COMM) 971/2016 Page 13 of 19 33. In the present case, the plaintiff has established its goodwill in the market and in the absence of any evidence to contrary, the same is deemed to be accepted.

34. The plaintiff alleges that the trade dress of the plaintiff‟s products has been imitated in order to denote a false origin of the goods and free-ride upon the tremendous goodwill of the plaintiff.

35. I have compared the packaging of the products as extracted in paragraph 19 and 21 of the plaint, and am of the view that the defendants have attempted to pass off their goods by imitating the trade dress of the plaintiff. Further in the case ofColgate Palmolive Companyv.Anchor Health and Beauty Care Pvt. Ltd., (2003) 108 DLT51 (2003) 27 PTC478(Del.) a coordinate bench had observed as under: “53. It is the overall impression that customer gets as to the source and origin of the goods from visual impression of colour combination, shape of the container, packaging, etc. If illiterate, unwary and gullible customer gets confused as to the source and origin of the goods which he has been using for longer period by way of getting the goods in a container having particular shape, colour combination and getup, it amounts to passing off. In other words if the first glance of the article without going into the minute details of the colour combination, getup or layout appearing on the container and packaging gives the impression as to deceptive or near similarities in respect of these ingredients, it is a case of confusion and amounts to passing off one's own goods as those of the other with a view to encash upon the goodwill and reputation of the latter.” (Emphasis Supplied) 36. Further, the Supreme Court in the case of Parle Products (P) Ltd.v.J.P. and Co., (1972) 1 SCC618 had held as under: CS(COMM) 971/2016 Page 14 of 19 9. It is, therefore, clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can essily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word “Gluco Biscuits” in one and “Glucose Biscuits” on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in our opinion who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs' goods, he might easily mistake the defendants' wrapper for the plaintiffs' if shown to him some time after he had seen the plaintiffs'.After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Homes. We have therefore no doubt that the defendants' wrapper is deceptively similar to the plaintiffs' which was registered. We do not think it necessary to refer to the decisions referred to at the bar as in our view each case will have to be judged on its own features and it would be of no use to note on how many points there was similarity and in how many others there was absence of it.” (Emphasis Supplied) 37. Applying the aforegoing, I am of the view that the defendants have indulged in the tort of passing off by imitating the trade dress of the plaintiff. They have attempted to portray their products in a manner as CS(COMM) 971/2016 Page 15 of 19 to dupe the general public as to they originate from the plaintiff. Accordingly, the defendants have not only indulged in infringement, but also into the offence of passing off.

38. Having held that the defendants have infringed the copyright and registered trademarks of the plaintiff, committed the tort of passing off and dilution, the only other issue which remains in the present suit is damages. PUNITIVE DAMAGES39 With regard to the relief of damages as claimed by the plaintiffs in paragraph (g) of the prayercontained in the plaint, the plaintiffs relied uponTime Incorporated v. Lokesh Srivastava & Anr., 2005 (30) PTC3(Del):

2005. (116) DLT599 wherein while awarding punitive damages of Rs. 5 lakhs in addition to compensatory damages also of Rs. 5 lakhs, Justice R.C. Chopra observed as under: “8. This Court has no hesitation on saying that the time has come when the Courts dealing actions for infringement of trade marks, copy rights, patents etc. should not only grant compensatory damages but award punitive damages also with a view to discourage and dishearten law-breakers who indulge in violations with impunity out of lust for money so that they realise that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them. In Mathias v. Accor Economy Lodging Inc., 347 F.3d 672 (7th Cir. 2003) the factors underlying the grant of punitive damages were discussed and it was observed that one function of punitive damages is to relieve the pressure on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes. It was further observed that the award of punitive damages serves the additional purpose of limiting the defendant's ability to profit from its fraud by escaping detection and prosecution. If a torfeasor is caught only half the time he commits torts, then when he is caught he should be punished twice as heavily in CS(COMM) 971/2016 Page 16 of 19 order to make up for the times he gets away.This Court feels that this approach is necessitated further for the reason that it is very difficult for a plaintiff to give proof of actual damages suffered by him as the defendants who indulge in such activities never maintain proper accounts of their transactions since they know that the same are objectionable and unlawful. In the present case, the claim of punitive damages is of Rs. 5 lacs only which can be safely awarded. Had it been higher even, this Court would not have hesitated in awarding the same. This Court is of the view that the punitive damages should be really punitive and not flea bite and quantum thereof should depend upon the flagrancy of infringement.” (Emphasis Supplied) 40. This Court in the case of Microsoft Corporation v. Rajendra Pawar & Anr., 2008 (36) PTC697(Del.) has held as under: “22. Perhaps it has now become a trend of sorts, especially in matters pertaining to passing off, for the defending party to evade Court proceedings in a systematic attempt to jettison the relief sought by the Plaintiff. Such flagrancy of the Defendant's conduct is strictly deprecatory, and those who recklessly indulge in such shenanigans must do so at their peril, for it is now an inherited wisdom that evasion of Court proceedings does not de facto tantamount to escape from liability. Judicial Process has its own way of bringing to task such erring parties whilst at the same time ensuring that the aggrieved party who has knocked the doors of the Court in anticipation of justice is afforded with adequate relief, both in law and in equity. It is here that the concept of awarding punitive damages comes into perspective.

23. Punitive damages are a manifestation of equitable relief granted to an aggrieved party, which, owing to its inability to prove actual damages, etc., could not be adequately compensated by the Court. Theoretically as well as practically, the practice of awarding of punitive damages may be rationalized as preventing under-compensation of the aggrieved party, allowing redress for undetectable torts and taking some strain away from the criminal justice system. Where the conduct of the erring party is found to be egregiously invidious and calculated to mint profits for his own self, awarding punitive damages prevents the erring party CS(COMM) 971/2016 Page 17 of 19 from taking advantage of its own wrong by escaping prosecution or detection.” (Emphasis Supplied) 41. A coordinate bench of this court in the case of The Heels v. Mr. V.K Abrol and Anr., CS(OS) NO.1385 of 2005 decided on 29.03.2006has held: “11. This court has taken a view that where a defendant deliberately stays away from the proceedings with the result that an enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium on the conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable.

12. No doubt it is not possible to give an exact figure of damages on the basis of actual loss, but certain token amounts on the basis of the sales of the plaintiff can certainly be made. The plaintiff is unnecessarily dragged into litigation and the defendants must bear consequences thereof. In fact in such a case both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff on such litigation.In view of the given sales figure of the plaintiff, I consider it appropriate to grant a decree of damages in favor of the plaintiff and against the defendants for a sum of Rs 3 lakh apart from costs of the suit.” (Emphasis Supplied) 42. Having regard to the facts of this case, Rs. 3 lakhs is awarded as punitive damages in favour of the plaintiff and against the defendant in terms of paragraph(g) of the prayer.

43. Accordingly, the present suit is decreed in favour of the plaintiff and against the defendants in terms of paragraphs (a), (b), (c), (d) and (f) of CS(COMM) 971/2016 Page 18 of 19 the prayer contained in the plaint along with punitive damages of Rs. 3 lakhs.

44. Let a decree sheet be drawn accordingly. G.S.SISTANI, J OCTOBER27 2016 // CS(COMM) 971/2016 Page 19 of 19


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