Delhi District Court
Hero Investcorp Private Limited And Anr vs Mohd. Arsad on 6 May, 2026
IN THE COURT OF SH. PULASTYA PRAMACHALA,
DISTRICT JUDGE (COMMERCIAL COURT)-01, PATIALA
HOUSE COURT, NEW DELHI
Sl. INDEX
No. HEADINGS Page Nos.
1. Memo of Parties 2
2. Description of case 3
3. Brief Facts of the Case 3-12
4. Plea of defendant 12-13
5. Appreciation of arguments, facts and law 14-23
6. Decision 23-24
Digitally
signed by
PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2026.05.06
16:46:32
+0530
CS (COMM.) No. 742/24 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page No.1 of 24 Patiala House Court, New Delhi
CS COMM 742/2024
In the matter of:
1. Hero Invest Corp Private Limited
A company registered under the Companies Act 1956
having its registered office at:
The Grand Plaza, Plot No.2,
Nelson Mandela Road,
Vasant Kunj, Phase-II, New Delhi-110070.
Through Authorized Representative
Ms. Purnima Dogra
Email: [email protected]
2. Hero MotoCorp Limited
A company registered under the Companies Act 1956
having its registered office at:
The Grand Plaza, Plot No.2,
Nelson Mandela Road,
Vasant Kunj, Phase-II, New Delhi-110070.
Through Authorized Representative
Mr. Siddhartha Shanker Tiwari,
Email: [email protected]
...Plaintiffs
Versus
Mr. Mohd. Arshad
Owner of Premises situated at
90-B, M.M. Burman Street, Kelabagan,
Near Betuml School, Kolkata-700007.
...Defendant
Date of institution : 10.09.2024
Date of reserving judgment : 16.04.2026
Date of pronouncement : 06.05.2026
Decision: Decree has been passed in favour of plaintiffs and
against defendant for permanent injunction and
damages.
CS (COMM.) No. 742/24 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page No.2 of 24 Patiala House Court, New Delhi
JUDGMENT
DESCRIPTION OF THE CASE
1. Vide this judgment, I shall decide the application filed by plaintiff under Order XIII A of the Code of Civil Procedure, 1908 for summary judgment. Plaintiffs have filed this suit for permanent injunction, passing off, infringement of trademark, copyright, design, delivery up, rendition of accounts, damages etc. BRIEF FACTS OF THE CASE
2. Briefly stated, plaintiffs are stated to be group of companies and plaintiff no.2 is engaged in manufacturing and sale of motorcycles, scooters and their parts and accessories, lubricants, engine oils under the trademark/label "HERO". Plaintiffs have averred that plaintiff no.2, since dissolution of the joint venture and consequent change in the company's name, has continued its business under the trade mark/trade name HERO MotoCorp. The trademark HERO is also used as label and device mark Hero, on diverse range of its products, including industrial oils and lubricant and other accessories. The trademarks are duly registered under one or more classes in the name of plaintiff no. l, which is one of the group companies of plaintiff no. 2.
3. Plaintiffs have further averred that one of the products of the plaintiffs is 'Hero Genuine Oil', which is sold in a unique bottle identifiable by consumers at large, with distinguishing features such as the bottle being equipped with a pouring spout or nozzle CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.3 of 24 Patiala House Court, New Delhi that allows controlled and precise pouring of the lubricant oil. The spout has a narrow opening and a specialized design to prevent spillage and wastage and the said product also has a distinct label attached to it with distinguishing features. Plaintiffs have pleaded that plaintiff no.2 gets its Hero Genuine Oil manufactured through four authorised vendors namely; (i) Savita oil technologies, (ii) Tide water, (iii) Bharat Petroleum and (iv) Indian Oil and the plaintiff no.2 follows a due process for sale and distribution of its Hero Genuine Oil, wherein, a UPI Code is generated at the manufacturing facilities of plaintiff no.2, which is sent to its Label Supplier and consequently it is printed on company's approved label design and after filling the bottles with the Oil, the finished/ packed product is sold in the market through its authorised vendors and distributors. Plaintiff has shown picture of its product, which is:
4. It is averred that plaintiffs are aggrieved by defendant's adoption of the unique shape of bottle/container design, trademark 'HERO' and label for its engine oil, which is identical to the unique bottle design registered in the name of plaintiff no.2 and trademark/label attached to it for its 'Hero genuine Oil' under the trademark 'HERO'. It is also the case of the plaintiffs that defendant is not only using a similar/identical bottle, but is also blatantly copying the trademarks and label of the plaintiffs, CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.4 of 24 Patiala House Court, New Delhi thereby infringing the designs and trademarks registered in favour of plaintiffs, as well as the copyright vested in the artistic work of the label attached to the bottle. Plaintiffs have pleaded that defendant is engaged in the business of manufacturing, filling and selling engine oil from its premises and selling variety of engine oil, one of them being in bottles/containers which are identical to the bottles/containers used by plaintiffs under its registered "SUIT DESIGNS", and label which are identical and/or deceptively similar to plaintiff's registered HERO MARKS and copyright vested in the label as adopted by plaintiffs for its engine oil. Photograph of defendant products are shown as:
5. Plaintiffs have further pleaded about sales figures of plaintiffs in respect of the two-wheelers and the spare parts and as an illustration, sale figure for the year 2021-2022 is mentioned as Rs.29,802.38 crores. Plaintiffs have spent huge sums of money on advertising and promotion, details whereof are mentioned in the plaint and for the year 2021-22, the expenditure was Rs.720.45 crores.
6. As per plaint, plaintiff no.2 was the registered proprietor of the following trademarks in India till May 2014 before plaintiff no.1 took steps for cancellation of these trademarks as post-joint venture dissolution formalities:
CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.5 of 24 Patiala House Court, New Delhi
7. It has been further stated that plaintiff no.2 has since the dissolution of the said joint venture and company name change, transited to the use of the following trademarks, the details of whereof are tabulated as follows: -
CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.6 of 24 Patiala House Court, New Delhi
8. Plaintiffs have pleaded that plaintiff no.2 being a Hero Group company uses these trade marks by virtue of authorization letter issued by plaintiff no.1 in favour of plaintiff no.2. The legal proceedings certificate with respect to the trademarks are annexed with the plaint. Plaintiffs averred that the engine oil, which is a flagship product of the plaintiffs, is sold in distinctive, unique bottles /container with its trademarks prominently displayed on its distinguishing label. The bottles comprise of unique shape and configuration, and keeping in view the novel features of its bottles, plaintiff No.2 filed two design applications bearing Nos. 311300 and 311301 on 25.10.2018 and accordingly, plaintiff no.2 owns valid and subsisting design registrations in its products, the details of which are given in para 29 of the plaint. Plaintiff averred that HERO lubricant oil bottles are specially designed by the plaintiff no.2 after extensive efforts in terms of research and development, and substantial amounts have been invested by the plaintiff no.2 in developing the same and the plaintiff no.2 ensured that the products and its design should not only meet all safety standards, but also look aesthetically pleasing. This strategy inspired the plaintiff no. 2 to develop unique product designs which were original and novel. Thus, the superior quality of its products, plaintiff no.2 original designs relating to its products enjoy an enviable reputation throughout India.
9. Plaintiffs have averred that reputation and goodwill of their trademark HERO and "SUIT DESIGNS" is not limited to any particular geographical area or a specific trade activity, and the CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.7 of 24 Patiala House Court, New Delhi market leadership of the plaintiffs' for such a long period of time has shown that from time to time plaintiffs have actively developed and diversified into new products and services and are always on the quest for other profitable ventures that may be of commercial interest to them. As per plaint, plaintiff no.1 has legal, vested and statutory and common law rights to the exclusive use of the said trademark HERO and the said trademark has thus, become a well-known trademark within the meaning of Section 2(1) (zg) of the Trademarks Act 1999 and has acquired huge noticeability, reputation, fame and goodwill.
10. Thus, plaintiffs have alleged that defendant is running its business from its manufacturing/filling unit/premises and is indulged in manufacturing, filling and selling engine oil, which are identical to the bottles/containers used by plaintiffs under its registered "SUIT DESIGNS" bearing the trademark 'HERO' and affixed with the label which are identical and/ or confusing, phonetically and visually similar to plaintiffs' registered "HERO MARKS" and the copyright vested in the label as adopted by Plaintiffs for its engine oil tantamount to infringement of Plaintiffs' right vested in its registered trademark, design and its label.
11. Plaintiffs have shown comparison of plaintiff's Hero genuine oil bottle with the defendant's impugned products. Plaintiffs have also shown detailed difference between the two bottles, which are as under: -
CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.8 of 24 Patiala House Court, New Delhi
12. Plaintiffs have averred that the defendant is neither the registered proprietor nor has obtained any license or written consent to apply/adopt the plaintiff No.2's registered "SUIT DESIGNS", "HERO MARKS" as used for its 'Hero Genuine Oil' bottles and the label attached to it and by adopting the mark Hero, design and label on its products, which are identical and/or deceptively, confusingly, phonetically and visually similar to registered "HERO MARKS", "SUIT DESIGNS" and labels affixed on the bottle of the plaintiffs for identical goods, defendant is not only riding on such goodwill and reputation of plaintiffs, but is also attempting to show some association with plaintiffs. Plaintiffs have alleged that their goods are sold popularly and unwary consumers will be duped into buying impugned products by mistaking it for plaintiffs' products, which is subjected to stringent quality test to ensure safe and quality products reach the CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.9 of 24 Patiala House Court, New Delhi consumers. Plaintiffs have averred that defendant is likely to unlawfully continue, the use of mark "HERO", design and label affixed on it, which are identical and/or deceptively, confusingly, phonetically and visually similar to registered "HERO MARKS"
and registered unique shape and design of the bottle and label affixed on the bottle used by plaintiffs for its 'Hero Genuine Oil' in relation to its business to promote and sell its products, unless restrained by the Court. The defendant's gains are plaintiffs' losses. Hence, the suit by the plaintiff.
13. In the suit, plaintiffs have prayed for following relief: -
i) Grant an order of permanent/perpetual injunction restraining the Defendant, its associates and agents, officers, employees, representatives and anyone associated with him from manufacturing, filling, selling, offering for sale, products or any other product and accessories bearing the mark 'HERO' and/ or any other mark deceptively and confusingly similar to trademark 'HERO' and/or any other "HERO MARKS", thereby infringing registered trademarks of Plaintiffs.
ii) Grant a decree of permanent injunction for restraining the Defendant, its associates and agents, officers, employees, franchisee, representatives and assigns from manufacturing, filling, selling, offering for sale, advertising, directly or indirectly, dealing in the infringing products or any other product which is identical and/or obvious fraudulent imitation of the "SUIT DESIGNS", namely design no.311300 and 311301 dated 25.10.2018 or any other registered design of the Plaintiff, thereby infringing Plaintiff's registered "SUIT DESIGNS".
CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.10 of 24 Patiala House Court, New Delhi
iii) Grant a decree of permanent injunction restraining the Defendant, its associates and agents, officers, employees, franchisee, representatives and assigns from manufacturing, filling, selling, offering for sale, advertising, directly or indirectly, dealing in the infringing products or any other product which embody an identical and/or deceptively similar label as attached to the Hero Genuine Oil sold by the Plaintiff thereby infringing the copyright vested in the artistic work of label attached to Hero Genuine Oil.
iv) Grant an order for delivery up of all the impugned finished and unfinished products bearing the impugned and violative trade mark, design, copyright or any other identical and /or confusingly or deceptively similar trade mark/label, design including labels, display boards, signboard, trade literatures and goods etc. to the Plaintiffs trademark and design bearing the representation/images/description of design no. 311300 and 311301 dated 25.10.2018 or any other design, trademark and labels similar to the design, trademark, label used by Plaintiffs on its Hero Genuine Oils for the purposes of destruction and erasure.
v) Grant a Decree for rendition of accounts or in the alternative damages to the tune of Rs.1 0,00,000/- (Rs. Ten Lakh Only) for loss of sales/profits, goodwill and reputation as well as unfair gains and profits earned by the Defendant due to the infringing activities of the Defendant.
vi) Grant an order to provide a complete discovery of any and all documents and information relating to any and all transactions concerning the infringement of the trademarks of its products as CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.11 of 24 Patiala House Court, New Delhi that of the Plaintiffs and preserve all documents and other evidence in its possession relating to the subject matter of the instant suit.
vii) Grant an order for punitive damages on account of unlawful activities which Hon'ble Court deem fit and proper in the facts and circumstances of the present case;
viii) Grant an order for costs of the proceedings.
ix) Any further orders as this Hon'ble Court may pass in favour of Plaintiffs and against the Defendant.
PLEA OF DEFENDANT
14. Summons of the suit were issued to defendant. Defendant was duly served on 10.09.2025, but neither defendant put in appearance nor filed any written statement. Thus, opportunity to file written statement was closed. At the time of issuing summons, a local commissioner was also appointed to visit the given premises of defendant to check the infringing products and to submit a report. Local commissioner filed a report after execution of the commission, along with photographs and inventory of infringing products found at the given premises of defendant.
15. Thereafter plaintiff filed present application under Order XIII A CPC for summary judgment, stating that plaintiff relies upon the averments in the plaint. Plaintiff averred that since the defendant did not appear on service of summons and no written statement on behalf of defendant, is on record, therefore, all assertions and allegations in the plaint are deemed to be admitted. Hence, there CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.12 of 24 Patiala House Court, New Delhi remains no real prospects of defending the claim by the defendant. Plaintiff averred that in Bright Enterprises Private Ltd. and Ors. v. M J Bizcraft and Ors. 2017 969) PTC 596 (Del), it was held as under: -
"20.........It is true that Rule 3 of Order XIIIA CPC empowers the Court to give a summary judgment against a plaintiff or defendant on a claim if it considers that - (a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and (b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. But, in our view, this power can only be exercised upon an application at any date only after summons have been served on the defendant and not after the Court has framed issues in the suit. In other words, Order XIIIA Rule 2 makes a clear stipulation with regard to the stage for application for summary judgment. The window for summary judgment is after the service of summons on the defendant and prior to the Court framing issues in the suit.
21. The provisions relating to summary judgment which enables courts to decide claims pertaining to commercial disputes without recording oral evidence are exceptional in nature and out of the ordinary course which a normal suit has to follow. In such an eventuality, it is essential that the stipulations are followed scrupulously otherwise it may result in gross injustice. As pointed out above, a specific period of time has been provided during which an application for summary judgment can be made. That period begins upon the service of summons on the defendant and ends upon the court framing issues in the suit."
16. I heard ld. counsel for the plaintiff and have perused the plaint and materials on the record.
CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.13 of 24 Patiala House Court, New Delhi APPRECIATION OF ARGUMENTS, FACTS AND LAW
17. Ld. counsel for the plaintiffs took the attention of the Court to the pictorial representation of their products to contend that the visual impression gathered from the trade dress of the competing products of plaintiff, have been substantially copied by the defendant. Ld. counsel argued that the defendant has adopted and started using, selling, soliciting and networking for the same trademark in relation to its impugned goods and business, and is otherwise dealing with it in the course of trade without the leave and license of the plaintiffs despite the fact that the plaintiffs are registered proprietor of the said trademark/label. Ld. counsel argued that there is every likelihood that an unwary and gullible customer will get confused. She further argued that besides injunction order, plaintiffs are also entitled for damages against the defendant. In support of her submissions, ld. counsel for the plaintiffs relied upon judgment of Hon'ble Delhi High Court passed in SANDISK LLC & ANR v. M/s B-ONE MOBILE & ORS., 2019 (78) PTC 363 (Del).
18. I have given my thoughtful consideration to the contentions and perused the documents and the submissions made by the counsel for the plaintiff at bar.
19. The basic principles, on which the law of infringement of intellectual property rights is based, are: -
19.1.1. To protect the consumers from being misled;
19.1.2. To maintain purity and morality in trade, as close or deceptive similarity, affinity and proximity is not CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.14 of 24 Patiala House Court, New Delhi permissible;
19.1.3. To preserve the reputation and goodwill of bonafide owner of intellectual property rights.
20. The broad principle on which the foundation of the right to restrain the user of a similar name, was enunciated in British Vacuum Cleaner Co. Ltd. v. New Vacuum Cleaner Co. Ltd., (1907) 2 Ch. 312, which referred to and relied upon Office Cleaning Services Limited v. Weiminster Office as under: -
"The foundation of the right to restrain the user of a similar name is the principle that no one is entitled to represent his business or goods as being the business or goods of another by whatever means that result may be achieved and it makes no difference whether the representation be intentional or otherwise; but a distinction has been and must always be drawn between cases in which the trade name or the part of it in question consists of word or words complained of, is or are of the character of a fancy word or words and primarily have no relation to such business or article but only to the person carrying on the business or dealing in the article".
21. It was in view of this principle that it has been held that if it can be established that the descriptive word or words has or have acquired among the public, or that a class of the public likely to deal with the business or goods in question, a subsidiary or secondary meaning denoting or connoting the business or the origin of the article, the person claiming to restrain the user of that word or those words, can obtain the relief he seeks.
22. The term "mark" has been denied in the Trade Marks Act, 1999 as under: -
"2. Definition and interpretation - (1) In this Act, unless the context otherwise requires: -
CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.15 of 24 Patiala House Court, New Delhi
(m) "mark" includes, a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof".
23. The term 'trade mark' has been defined in S. 2 (zb) of the Trade Marks Act, 1999 as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and if any mark is used in relation to other provision of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.
24. In the case of Laxmikant v. Patel, AIR 2002 SC 295, Hon'ble Supreme Court observed that it is common in the trade and business to adopt a name, and the courts should protect the goodwill attached to the business name. An action for passing-off will then lie wherever the defendant company's name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion a confusion between the two CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.16 of 24 Patiala House Court, New Delhi businesses.
25. In the case of Baker v. Master Printers Union of New Jersey, 47 USPQ 69 at 72 (D.N.J.1940), it was held that: -
"The most successful form of copying is to employ enough points of similarity to confuse the public with enough points of difference to confuse the courts. Few would be stupid enough to make exact copies of another‟s mark or symbol."
26. Hon'ble Supreme Court in Parle Products (P) Ltd. v. J.P. and Co., Mysore AIR 1972 SC 1359 held as under: -
"According to Karly's Law of Trade Marks and Trade (9th edition paragraph 838):
Two marks, when placed side by side, may exhibit many and various differences vet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which. bore tile same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade-marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rat her by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own."
27. I have carefully considered the submissions advanced by ld.
counsel for plaintiff in the light of above pronouncements of CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.17 of 24 Patiala House Court, New Delhi Superior Courts and have also perused the documents filed along with plaint, which is duly supported with statement of truth.
28. Perusal of plaint and documents shows that the plaintiff holds an extensive portfolio of registrations within various classes for the HERO Trademarks, as mentioned in para 28 of the plaint and defendant's adoption for goods that are prima-facie similar to plaintiff's product range, increase the risk of consumer confusion and dilution of the distinctiveness of plaintiff's trademark. In the instant case, the comparative analysis of the trademarks in question reveals that the impugned trademark bears a deceptive resemblance to the Plaintiff's established "HERO". The impugned trade-dress bears a deceptive similarity to the plaintiff's trade-dress/label. It is also apparent that such adoption has been done out of a well thought decision, so as to copy the trade mark of plaintiffs.
29. Thus, from the afore-noted analysis it is found that defendant's adoption of the impugned trademark "HERO MARKS" is not in good faith and by emulating plaintiff's registered trademark, defendant has attempted to capitalize on the goodwill, reputation, and proprietary rights of plaintiffs and such conduct of defendant not only presents a serious risk of misleading the public, but also suggests an intention to benefit from the plaintiff's market presence. There is a strong possibility that the public might erroneously believe in a non-existent business relationship between the parties, or even by mistake purchase the defendants' products for those of plaintiffs', which creates the potential confusion thereby encroaching upon the plaintiff's statutory CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.18 of 24 Patiala House Court, New Delhi trademark rights.
30. From the averments made in the plaint and the documents placed on record, I do find a clear-cut case of infringing the intellectual property rights of the plaintiffs. Since the written statement of the defendant has not been filed on the record, there is no challenge to the case of plaintiffs. The case of plaintiffs is based on documents showing registration of the trade mark in favour of plaintiffs. The report given by Local Commissioner establishes the infringing activity of defendant. In these circumstances, I do find that it is a fit case to pass summary judgment.
31. Accordingly, I do find plaintiffs entitled for decree of permanent injunction against defendant, to restrain the defendant from continuing its infringing activities against trade mark rights and copyright of the plaintiffs.
32. In respect of damages, ld. counsel for plaintiffs referred and relied upon Sandisk LLC (Supra). As far as damages are concerned, ld. counsel argued that since defendant infringed the intellectual rights of plaintiff and did not opt to come clean, he is liable to pay damages to the plaintiff. Ld. counsel preferred for damages on assumption, rather than going for rendition of account. The judgment passed in Sandisk (Supra) was referred to show that compensation was granted for infringement of intellectual property rights.
33. In the case of AERO Club v. M/s. Sahara Belts, 2023:DHC:8423, Hon'ble Delhi High Court referred to IPR Rules as framed by Delhi High Court, in order to make assessment of damages. Rule CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.19 of 24 Patiala House Court, New Delhi 20 of the IPD Rules 2022 provides that: -
"20. Damages/account of profits A party seeking damages/account of profits, shall give a reasonable estimate of the accounts claimed and the foundational facts/account statements in respect thereof along with any evidence, documentary and/or oral led by the parties to support such a claim. In addition, the Court shall consider the following factors while determining the quantum of damages:
i) Lost profits suffered by the injured party;
ii) Profits earned by the infringing party;
iii) Quantum of income which the injured party may have
earned through royalties/license fees, had the use of the subject IPR been duly authorised;
iv) The duration of the infringement;
v) Degree of intention/neglect underline the infringement;
vi) Conduct of the infringing party to mitigate the damages
being incurred by the injured party;
In the computation of damages, the Court may take the assistance of an expert as provided for under Rule 31 of these Rules."
34. In Koninlijke Philips and Ors. v. Amaze Store and Ors., 2019:DHC:2185, Delhi High Court laid down following standards for grant of damages: -
"41. Keeping in view the aforesaid, this Court is of the view that the rule of thumb that should be followed while granting damages can be summarised in a chart as under: -
35. Degree of malafide Conduct Proportionate award
(i) First-time innocent infringer Injunction
(ii) First-time knowing infringer Injunction + Partial Costs
(iii) Repeated knowing infringer Injunction + Costs + which causes minor impact Partial damages to the Plaintiff
(iv) Repeated knowing infringer Injunction + Costs + CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.20 of 24 Patiala House Court, New Delhi which causes major impact Compensatory to the Plaintiff damages
(v) Infringement which was Injunction + Costs + deliberate and calculated aggravated damages (Gangster/scam/mafia) (compensatory + +willful contempt of court additional damages)
42. It is clarified that the above chart is illustrative and is not to be read as a statutory provision. The Courts are free to deviate from the same for good reason."
36. As far as present case is concerned, the report of Local Commissioner mentions the description of articles found and seized during visit of site of defendant. Same is as follows: -
S. No. Particulars
1. 1200 HERO branded Empty Bottles 900 ml each
2. 150 HERO Caps (900 ml bottle cap)
3. 140 label sheets of HERO (900 ml bottle)
4. 300 X 20 = 6000 HERO seals (900 ml bottle)
37. Thus, it is well apparent that defendant had been involved in full-
fledged use of infringing trade mark for sale of his products. Defendant in the case did not opt to appear at all despite being served. It is also worth to mention that defendant must have been well aware of this case because aforesaid articles were seized during visit of Ld. Local Commissioner at his shop. Defendant did not produce record of sale either before Local Commissioner or before this court. In that situation, this court has to make a presumptive assessment for damages. There cannot be any second thought that defendant is liable to pay damages to plaintiffs for infringing its trade mark rights. In fact, it is apparent that defendant had been infringing trademarks rights of the CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.21 of 24 Patiala House Court, New Delhi plaintiffs in deliberate and conscious manner with all preparations done to utilize the goodwill of plaintiff's company, for his own selfish interest and to gain profit out of it. Therefore, defendant is liable for paying aggravated form of damages.
38. The products found during visit of Local Commissioner included 1200 bottles with infringing trade mark. Besides that, caps, label sheets and hero seals were also found. There is no document on the record to show sale of infringing products, so as to show the annual turnover. I could find mention of price of product per bottle of 900 ml from the photographs filed by ld. Local Commissioner and the label being affixed on the bottles mentioned price of Rs.350/- per product.
39. However, there is nothing on the record to show since when defendant had been indulging into aforesaid illegal practice. It was for the defendant to come up with any plea in defence including the plea if any, regarding being new or first timer for such activities. In these circumstances, I shall presume that defendant had been using the infringing trade mark for at least last one year from the date of filing of this suit. If it is presumed on the basis of quantity of bottles of "HERO" as found by Local Commissioner, that such stock would be for a month, then going by conservative way of presumptive calculations, defendant is presumed selling at least 1200 bottles of 900ml per month at the price of Rs.350/- per product. This would lead to monthly income of Rs.4.20 lakhs. For one year the income would be Rs.50,40,000/-. Since all these figures are based on presumptive calculations, I would restrict this amount to Rs.50.00 lakhs. Thus, CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.22 of 24 Patiala House Court, New Delhi as per this calculation, defendant is liable to pay damages of Rs.50.00 lakhs for use of infringing trade mark.
40. It is well apparent that defendant by way of his infringing acts, compelled the plaintiffs to launch this prosecution, while incurring expenses, including expenses of execution of local commission. Therefore, defendant is liable to pay a cost of Rs.2 lacs along with cost of this suit, as per rules. Certificate of lawyers' fee be filed within 10 days and in absence of the same, a notional fee in the sum of Rs.50,000/- shall be considered.
DECISION
41. In view of my foregoing discussions, observations and findings following relief are granted to plaintiffs: -
41.1. A decree of permanent injunction is passed in favour of the plaintiffs and against defendant to restrain defendant, his associates and agents, employees, distributors, franchisee, representatives and assigns, from using the 'HERO MARKS' and "SUIT DESIGNS" along with their respective copyrights, and/or any other mark/design deceptively and confusingly similar to ''HERO MARKS' and "SUIT DESIGNS", or packaging as used by defendant which is identical to the Plaintiffs' copyright vested in 'HERO' and " " and packaging as depicted in Para 34 of the Plaint on its products thereby infringing the trademarks, design and copyright of the Plaintiffs and passing off his products as that of the Plaintiffs, and from using indicia to show any association or affiliation or connection of defendant or its products.
CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.23 of 24 Patiala House Court, New Delhi 41.2. Defendant is further liable to hand over all the materials seized during visit of Local Commissioner, for their destruction, to the plaintiffs. Thus, defendant is directed to hand over all such items as per inventory prepared by the Local Commissioner, to the AR of plaintiffs as and when such demand is made by the plaintiff. However, for this purpose, plaintiffs must approach defendant within 3 months from this date. Thereafter, this direction shall lapse, though defendant shall still not be entitled to use the same.
41.3. Damages in the sum of Rs.50.00 lakhs is awarded in favour of plaintiffs and against the defendant.
41.4. Cost of Rs.2 lacs along with cost of this suit, as per rules, is also awarded to plaintiffs. Certificate of lawyers' fee be filed within 10 days and in absence of the same, a notional fee in the sum of Rs.50,000/- shall be considered.
42. Decree sheet be prepared accordingly. File be consigned to record room as per rules.
Digitally signed by PULASTYA PRAMACHALAPULASTYA PRAMACHALA Date:
2026.05.06 16:46:38 +0530 Pronounced in the (PULASTYA PRAMACHALA) Open Court on this District Judge (Commercial Court)-01, 6th Day of May, 2026 Patiala House Court, New Delhi CS (COMM.) No. 742/24 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.24 of 24 Patiala House Court, New Delhi