Delhi District Court
Apollo Pipes Ltd vs Nirmal Polymers on 7 January, 2025
IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (Comm.) No. 41/2023
CNR No. DLSH01-000496-2023
APOLLO PIPES LIMITED
37, Hargovind Enclave,
Vikas Marg, Delhi - 110 092
Through Authorized Representative
Sh. Ankit Sharma
Ph : +91-9560589053
.....Plaintiff
Versus
NIRMAL POLYMERS
(A Proprietorship Firm in the name of Mr. Nirmal)
Survey No. 224/1A, Madhavaram High Road,
Redhills, Vadaperumbakkam,
Thiruvallur - 600060, Tamil Nadu
(Near Kothaari Warehouse)
GSTN : 33CEIPN6145K1Z8
E-mail : [email protected]
......Defendant
Date of Registration : 27.01.2023
Date of final arguments : 07.12.2024
Date of Judgment : 07.01.2025
EX-PARTE JUDGMENT
1.The present commercial suit for permanent injunction, Restraining infringement of Trademark, passing off, unfair trade competition, rendition of accounts, damages, delivery-up etc., has been filed on behalf of the plaintiff, wherein, it is stated that plaintiff is a flagship company of Sudesh Group and is among the top 10 leading piping solution providing Companies in India, and is having more than three decades of experience BRIJESH in the Indian Digitally signed by BRIJESH KUMAR KUMAR GARG Date: 2025.01.07 GARG page 1 of 17 16:48:04 +0530 CS (Comm.) 41/2023 D.J.(Commercial)-01/Shahdara/KKD/Delhi PVC Pipe Market and holds a strong reputation for high quality products.
2. It is further stated in the plaint that the plaintiff is engaged in the business of manufacturing and marketing a wide range of building material products, inter alia, CPVC/ UPVC Pipes and Fittings thereof; Agriculture System like Agri Pipes & Fittings, HDPE Pipes & Fittings, Sprinkler Systems; Sewage Systems; Borewell systems; Water Storage Tanks; Bath Fittings; Home Solutions etc. and accessories and has created a name for itself in the last 36 years.
3. It is further stated in the plaint that the present suit has been instituted for protection of rights of the plaintiff for its well known trade name/trademark 'APOLLO', 'APL APOLLO' & , as the defendants are using deceptively similarly/identical trade-mark of the plaintiff, in relation to its PVC pipes and building material products, resulting in infringement of trade-mark and passing off their goods as that of the plaintiff.
4. It is further stated in the plaint that the trade-mark 'APOLLO', 'APL APOLLO' & and , has been extensively advertised all over India through various print media and electronic media, which includes famous bollywood celebrities and it enjoys substantial good-will and reputation.
5. It is further stated in the plaint that the plaintiff is the registered user of trade-mark 'APOLLO', 'APL APOLLO' & and CS (Comm.) 41/2023 page 2 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi . It is further stated that due to success of its products, the products of the plaintiff are widely recognized all over India and abroad, and therefore, the aforesaid distinctive trade-marks of the plaintiff are a valuable assets to the business of the plaintiff.
6. It is further stated in the plaint that the defendants are also engaged in the business of manufacturing, marketing and trading of PVC pipes, pipe fittings and other accessories and are infringing the registered trademark and trade-name 'APOLLO', 'APL APOLLO' & , of the plaintiff, by using the deceptively similar/identical trade-mark.
7. It is further stated in the plaint that in the second week of November, 2022, it came to the notice of the plaintiff company that the defendants were engaged in promoting, marketing and selling of goods, under identical/deceptively similar trade-marks 'A ONE APOLLO', 'A ONE APOLLO SUPER DELUX', 'A- ONE APOLLO FLEX' etc. which are deceptively similar/identical to the well known registered trade-mark of the plaintiff.
8. It is further stated in the plaint that in third week of November, 2022, while checking the online record of the trademarks, the plaintiff found one application No. 5596625 dated 05.09.2022, filed by the defendant for registration of impugned trademark on 'proposed to be used' basis and the same is pending for examination by the Trademark Registry, Delhi.
CS (Comm.) 41/2023 page 3 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi
9. It is further stated in the plaint that the defendants have applied for registration of trademark/device , but, they are actually using different mark i.e. .
10. It is further stated in the plaint that the defendants are not having any registered trademark for "APOLLO" for PVC pipes, as per online trademarks records. It is further stated that the adoption of the phonetically, visually and structurally identical trademark 'A ONE APOLLO', 'A ONE APOLLO SUPER DELUX', 'NP APOLLO STAR', and 'A-ONE APOLLO FLEX', in respect of the PVC pipes and fittings and other allied and cognate products is a malafide attempt to pass off the impugned goods as that of the plaintiff.
11. It is further stated in the plaint that the defendants have copied the most essential part of the plaintiff's well-known trademarks, 'APOLLO', 'APL APOLLO' & , device in entirety and the said act amounts to infringement of the trademarks of the plaintiff.
12. It is further stated in the plaint that the aforesaid acts of the defendant are causing great financial loss to the plaintiff and reputation of the plaintiff is at stake as the low quality products of the defendant are damaging the goodwill of the plaintiff.
13. It is further stated in the plaint that the intended use of deceptively similar/ identical trade-mark/device by the defendants, in respect of the identical goods of the plaintiff, amounts to dilution of well known trade-marks of the plaintiff.
CS (Comm.) 41/2023 page 4 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi
14. It is further stated in the plaint that the defendant has copied the well known trade-marks, 'APOLLO', 'APL APOLLO' & , and such use and adoption of the well known trade-marks of the plaintiff, by the defendant, is not authorized and legitimate and amounts to willful infringement of the trade-marks of the plaintiff.
15. It is further stated in the plaint that the defendants are engaged in passing of their goods, bearing the trademarks, 'APOLLO', 'APL APOLLO' & , of the plaintiff.
16. It is further stated in the plaint that the dishonest adoption of registered trademarks, 'APOLLO', 'APL APOLLO' & of the plaintiff, by the defendant is dishonest and motivated and is causing loss and injury to the plaintiff's reputation and business.
17. It is further stated in the plaint that this court has the territorial jurisdiction to entertain the present suit as the plaintiff is having its' registered office at 37, Hargobind Enclave, Vikas Marg, Delhi - 110 092 and the goods of the plaintiff were extensively and consistently sold and marketed within the territorial jurisdiction of this court. It is further stated that the defendant is also carrying on its business and voluntarily working for gain within the jurisdiction of this court and is also thoroughly promoting/advertising the impugned goods through social media platforms like facebook.com etc, and e-commerce platforms like Indiamart.com, which are accessible all over India and also accessible from Shahdara District, Delhi.
CS (Comm.) 41/2023 page 5 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi
18. The plaintiff has prayed for following reliefs, as under :
"a) A decree for permanent injunction restraining the Defendants, its servants, agents, stockiest from manufacturing, trading, selling, marketing, printing, offering for sale or dealing in any other way, any goods including PVC Pipes, PVC Pipes Fittings, Water Tanks, other related goods, building material products and accessories etc., and/ or any other goods under the mark "APOLLO", "APL APOLLO" & , as their trademark or trade name or any other mark/ logo which is deceptively similar to the Plaintiff mark "APOLLO", "APL APOLLO" & , which may amount to infringement of the Plaintiff registered trademarks as mentioned in this suit.
b) A decree for permanent injunction restraining the Defendants, its servants, agents, stockiest from manufacturing, trading, selling, marketing, printing, offering for sale or dealing in any other way, any goods including PVC Pipes, PVC Pipes Fittings, Water Tanks, other related goods, building material products and accessories etc., and/or any other goods under the mark "APOLLO", "APL APOLLO" & , either together or in isolation to each other as their trademark or trade name or any other mark/ logo which is deceptively similar to the Plaintiff mark "APOLLO", "APL APOLLO" & , which may amount to passing off the Defendants goods as the goods of the Plaintiff.
c) An order for delivery up of all finished and unfinished goods, dies, blocks, labels and any other printed matter bearing the impugned marks "A ONE APOLLO", "A ONE APOLLO SUPER DELUXE", "NP APOLLO STAR", "A-
ONE APOLLO FLEX" (both logo and word) or any other mark similar or identical to Plaintiff's well-known and Registered Trademark "APOLLO", "APL APOLLO" & , to the authorized representative of the Plaintiff for the purpose of destruction/erasure;
d) A decree of damages against the Defendants and in favor of the Plaintiff, on account of their illegal activities.
e) For an order of rendition of accounts of profits earned by the Defendants by their impugned illegal trade activities and a decree for the amount so found in favor of the plaintiff on such rendition of accounts.
f) An order for costs of the proceedings.
g) Any other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
Digitally signed BRIJESH by BRIJESH
KUMAR KUMAR GARG
Date: 2025.01.07
GARG 16:49:27 +0530
CS (Comm.) 41/2023 page 6 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi
19. After filing of the present suit, the summons of the suit for settlement of issues along with Notices of the applications u/o XXXIX Rule 1 & 2 r/w Section 151 CPC, and the application under Order XXVI Rule 9 and Order XXXIX Rule 7 r/w Section 151 CPC were issued to the defendants. On receipt of the same, Sh. Varun Bhati, Advocate had appeared on behalf of the defendant and filed his Memo of Appearance. He also sought some time to file the Written Statement. On 02.12.2023, the Ld. Counsel for the defendant filed his vakalatnama and sought some more time to file the Written Statement. His request was allowed, subject to imposition of a cost of Rs.20,000/- on the defendant. Thereafter, none had appeared on behalf of the defendant, and no written statement was filed, on behalf of the defendant, and therefore, vide order dated 09.12.2023, the defendant was proceeded 'exparte'.
20. During the 'exparte' plaintiff's evidence, the plaintiff has examined its AR Sh. Ankit Sharma as PW1, who has filed his affidavit Ex. PW1/A and has proved the various documents as Ex. PW1/1 to Ex. PW1/28.
21. The 'exparte' final arguments were concluded by Sh. Tushar John and Sh. Sahil Baheti, Advocates for the plaintiff on 07.12.2024. None has appeared on behalf of the defendant, even to address the final arguments.
22. During the course of arguments, the Ld. counsels for the plaintiff have reiterated the contents of the plaint and have argued that the witness of the plaintiff has proved the case of theDigitally signed by BRIJESH BRIJESH KUMAR KUMAR GARG Date: 2025.01.07 GARG 16:49:35 +0530 CS (Comm.) 41/2023 page 7 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi plaintiff, and therefore, the suit of the plaintiff may be decreed for the reliefs of permanent injunction, passing off and delivery up of the infringed goods. However, they have prayed that the plaintiff was not pressing for the relief of rendition of accounts, as the defendant has remained 'exparte' during the trial. They have further prayed that in the absence of evidence regarding the damages suffered by the plaintiff, due to illegal acts of the defendant, punitive damages may be awarded in favour of the plaintiff and against the defendant. They have relied upon the following judgments, in support of their contentions :
(i) 'The Indian Hotels Company Ltd. vs. Ashwajeet Garg & Ors.', reported as, '2014 (59) PTC 256 (Del)';
(ii) 'Midas Hygiene vs. Sudhir Bhati and Ors.', reported as, '2004 (28) PTC 121 (SC)';
(iii) 'Banyan Tree Holdings Limited vs. Angsana Thai Spa', passed by the Hon'ble High Court of Delhi, in CS (Comm.) 912/2022, dated 01.12.2024';
(iv) 'Inter Ikea Systems BV vs. Imtiaz Ahmed', passed by the Hon'ble High Court of Delhi, in CS (OS) 3295/2014, dated 09.09.2016' and;
(v) 'Shree Girirajji and Co. vs. Gagan Pagrani Proprietor of Plastica Industries', passed by the Hon'ble High Court of Delhi, in FAO (Comm.) 47-2024, dated 14.03.2024'.
23. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. Counsels for the plaintiff. I have also perused the written arguments and the various judgments, cited by the Ld. Counsels for the plaintiff in support of their contentions.
24. Perusal of the record shows that in his affidavit Ex.PW1/A, PW-1 Sh. Ankit Sharma has reproduced the entire contents of the BRIJESH Digitally signed by BRIJESH KUMAR GARG KUMAR Date: 2025.01.07 GARG 16:49:43 +0530 CS (Comm.) 41/2023 page 8 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi plaint and has proved the various documents on record as Ex.PW1/1 to Ex.PW1/28. The certificate/affidavit under Order XI Rule 6 Commercial Courts Act, 2015, r/w Section 65B of the Indian Evidence Act, has been proved on record as Ex.PW1/28. This witness has filed a copy of the board resolution dated 07.11.2020, whereby, he was authorized to represent the plaintiff company in the present suit. The certificate of incorporation of the plaintiff company has been proved on record as Ex.PW1/2. The various registration certificates in favour of the plaintiff have been placed on record as Ex.PW1/5 (Collectively) and Ex.PW1/6 (Collectively). The various legal proceedings certificates, pertaining to the three registered trademarks of the plaintiff, i.e., 'APOLLO', 'APL APOLLO' & have been proved on record as Ex.PW1/7 (Collectively).
25. In his affidavit Ex.PW1/A, PW-1 Sh. Ankit Sharma has reiterated that the defendant has infringed the above mentioned registered trade-marks of the plaintiff, by using the deceptively similar/identical trade-marks of the plaintiff. It is further reiterated by him that the defendant had copied the most essential parts of the well-known trade-marks of the plaintiff, in entirety. The photographs of the products of the plaintiff, depicting the registered trade-marks/labels of the plaintiff, downloaded from the website of the plaintiff, have been proved on record as Ex.PW1/15. The photographs of the infringed goods of the defendant, depicting mark/label of the defendant, downloaded from the webpage of the defendant on www.facebook.com and www.indiamart.com have been proved on record as Ex.PW1/16. The photograph of the manufacturing unit of the defendant and CS (Comm.) 41/2023 page 9 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi its business card has been proved on record as Ex.PW1/17 & Ex.PW1/18 respectively. The price list of impugned infringed goods of the defendant, downloaded from the webpage of the defendant at www.indiamart.com has been proved on record as Ex.PW1/19.
26. In his affidavit Ex.PW1/A, PW-1 Sh. Ankit Sharma has reiterated that the defendant had applied for a deceptively similar trade-mark, 'NPA APOLLOSTAR, with the trademark registry at Chennai, and as on 19.01.2023, the current status of the application is, 'objected'. A print out from the official website of IP Registry and Form-TM-A of impugned trademark application of the defendant has been placed on record as Ex.PW1/20 and Ex.PW1/21, respectively.
27. PW-1 Sh. Amit Sharma has further reiterated that the intended use of deceptively similar/ identical trade-mark/device by the defendant, in respect of the identical goods of the plaintiff shall amount to dilution of the well-known trade-mark of the plaintiff. It is further stated that the defendant has unlawfully adopted the said trade-mark, due to which the plaintiff has suffered and is likely to suffer irreparable loss and injury to its goodwill and reputation.
28. PW-1 Sh. Ankit Sharma has also filed the various print outs from various websites and e-commerce platforms www.indiamart.com, www.justdial.com www.facebook.com, www.instagram.com, www.linkedin.com, www.youtube.com, and www.twitter.com, as Ex.PW1/22 to Ex.PW1/26, to prove the presence of the plaintiff and the defendant on the above BRIJESH Digitally signed by BRIJESH KUMAR KUMAR GARG Date: 2025.01.07 GARG page 10 of 17 16:49:53 +0530 CS (Comm.) 41/2023 D.J.(Commercial)-01/Shahdara/KKD/Delhi mentioned e-commerce platforms and websites.
29. Perusal of the record further shows that the defendant has remained 'exparte' during the entire trial, and therefore, the testimony of PW-1 Sh. Ankit Sharma, has remained unchallenged, controverted and unrebutted. There is nothing on record to rebut his contentions. There is no reason to disbelieve his testimony.
30. It was held by the Hon'ble High Court of Delhi, in case titled as, 'The Indian Hotels Company Ltd. vs. Ashwajeet Garg & Ors.', (Supra), as under :
"45. The legal principles that thus emerge are the following:
i. Action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark. ii. Registration of trade mark gives the proprietor the exclusive right to the use of the trade mark in connection with the goods in respect of which it is registered. iii. If the essential features of the trade mark of the Plaintiff have been adopted by the Defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets shows marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial.
iv. Mere delay in filing of a suit for infringement is not fatal. v. Phonetic similarity constitutes an important index of whether a mark bears a deceptive or misleading similarity to another.
vi. The Court must consider the usage of words in India, the manner in which a word would be written in Indian languages and the similarity of pronunciation if the rival marks are used.
vii. Resemblance between the two marks must be considered with reference to the ear as well as the eye. viii. The rival marks have to be compared as a whole. The two competing marks must be judged both by their look and by their sound. All the surrounding circumstances must be considered.
ix. Where the similarity between the Plaintiff's Digitally and signed theby BRIJESH BRIJESH KUMAR KUMAR GARG Date: 2025.01.07 GARG page 11 of 17 16:50:00 +0530 CS (Comm.) 41/2023 D.J.(Commercial)-01/Shahdara/KKD/Delhi Defendant's mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the Plaintiff's rights are violated. x. Competing marks have to be compared keeping in mind an unwary purchaser of average intelligence and imperfect recollection.
xi. 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 marked differences in the design and get up.
xii. A single actual use with intent to continue such use eo instanti confers a right to such mark as a trade mark. xiii. The applicant has to establish user of the aforesaid mark prior in point of time than the impugned user by the non- applicant.
xiv. A suit for infringement is maintainable by a registered proprietor against another registered proprietor. xv. While staying the further proceedings pending decision of the registrar on rectification, an interim order including of injunction restraining the use of the registered trademark by the Defendant can be made by the court. xvi. A trademark shall not be registered if it is identical or similar to an earlier trademark in respect of goods or services covered by the trade mark and is likely to cause confusion amongst the public.
xvii. Registration of an identical or a similar trade mark shall also be refused for goods and services not covered by the earlier trade mark if it is shown that the earlier trade mark is a well known trademark. 13 xviii. The mere fact that the Plaintiff has not chosen to take any action against other parties cannot disentitle the Plaintiff from taking the present action.
(emphasis supplied)
31. It was also held by the Hon'ble High Court of Delhi, in case titled as, ''Inter Ikea Systems BV vs. Imtiaz Ahmed', (Supra), as under :
"20. As noted above, despite service of summons on them, the defendants have elected to stay away from the present proceedings so as to thwart any enquiry into their account for determination of damages. As a result, no inquiry into their accounts could be conducted for this court to pass an order of rendition of accounts of profits and delivery up, so as to BRIJESH Digitally signed by BRIJESH KUMAR GARG KUMAR Date: 2025.01.07 CS (Comm.) 41/2023 page 12 of 17 GARG D.J.(Commercial)-01/Shahdara/KKD/Delhi 16:50:09 +0530 compensate the plaintiffs for the extent of damages suffered by them. But, that alone would not be a deterrent. Merely because the defendants have deliberately elected to stay away from the court proceedings, cannot be a ground to permit them to reap the benefits of evading the suit proceedings and its outcome.
21. The court is mindful of the fact that in such a situation where the defendant chooses to stay away from the court proceedings, he should not be permitted to enjoy the benefits of such an evasion. Any view to the contrary would result in a situation where a compliant defendant who appears in court pursuant to summons being issued, participates in the proceedings and submits his account books, etc., for assessment of damages, would end up on a worse footing, vis-à-vis a defendant who chooses to conveniently stay away after being served with the summons in the suit. That was certainly not the intention of the Statute. Section 135 (1) of the Trademarks Act, 1999 provides that relief that may be granted in any suit for infringement of or for passing off includes injunction and at the option of the plaintiff, either damages or an account of profits. The plaintiffs in the present case have opted for claiming damages and have established beyond doubt that they have suffered damages on account of the conduct of the defendants which are a result of infringement of their trademark and copyright.
22. It is well settled that damages in cases like the present one must be awarded and a defendant, who elects to stay away from the court proceedings, should not be permitted to enjoy the benefits of staying away from the said proceedings. With regard to the relief of damages claimed by the plaintiffs herein, it may be noted that courts have been granting both, exemplary and punitive damages against the defendant in ex- parte matters of similar nature. In the case of Times Incorporated v. Lokesh Srivastava & Anr. reported as 2005 (30) PTC 3 (Del), while awarding punitive damages of Rs.5 lacs against the defendant therein, in addition to compensatory damages of a similar amount, a learned Single Judge of this Court had observed as below:
"7. Coming to the claim of Rs. 5 lacs as punitive and exemplary damages for the flagrant infringement of the plaintiff's trade mark, this Court is of the considered view that a distinction has to be drawn between compensatory damages and punitive damages. The award of compensatory damages to a plaintiff is aimed at compensating him for the loss suffered by him whereas punitive damages are aimed at deterring a wrong doer and the like minded from indulging in such unlawful Digitally signed by BRIJESH BRIJESH KUMAR KUMAR GARG Date: 2025.01.07 GARG page 13 of 17 16:50:16 +0530 CS (Comm.) 41/2023 D.J.(Commercial)-01/Shahdara/KKD/Delhi activities. Whenever an action has criminal propensity also the punitive damages are clearly called for so that the tendency to violate the laws and infringe the rights of others with a view to make money is curbed. The punitive damages are founded on the philosophy of corrective justice and as such, in appropriate cases these must be awarded to give a signal to the wrong doers that law does not take a breach merely as a matter between rival parties but feels concerned about those also who are not party to the list but suffer on account of the breach. In the case in hand itself, it is not only the plaintiff, who has suffered on account of the infringement of its trade mark and Magazine design but a large number of readers of the defendants' Magazine 'TIME ASIA SANSKARAN' also have suffered by purchasing the defendants' Magazines under an impression that the same are from the reputed publishing house of the plaintiff company.
8. This Court has no hesitation in 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 end dishearten law breakers who indulge in violations with impunity out of lust for money so that they realize 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. reported in 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 tortfeasor is caught only half the time he commits torts, then when he is caught he should be punished twice as heavily in 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 BRIJESH Digitally signed by BRIJESH KUMAR GARG KUMAR Date: 2025.01.07 GARG 16:50:23 +0530 CS (Comm.) 41/2023 page 14 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi 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 flee bite and quantum thereof should depend upon the flagrancy of infringement."
(emphasis added)
23. Similarly, in the case of Lachhman Das Behari Lal vs. Sri Ghanshyam Das Jetha Nand & Others reported as 2007 (35) PTC 693 (Del.), following the principle laid down in the case of The Himalaya Drug Company v. Sumit, reported as 126 (2006) DLT 23 : 2006 (32) PTC 112 (Del.), wherein it was held that apart from compensatory damages, in cases of infringement of trade marks, copyrights, etc., courts should not only grant compensatory damages, but should also award punitive damages with a view to discourage and dishearten law breakers who indulge in violations with impunity, out of lust for money so that they are made to realise that in case they are caught, they would be liable not only to reimburse the aggrieved party, but also pay punitive damages, which may spell financial disaster for them, the said suit was decreed in favour of the plaintiff therein with punitive damages of Rs.25 lacs imposed on the defendant. The aforesaid observations were made on the basis of certain other decisions namely, Times Incorporated (supra) and Mathias vs. Accor Economy Lodging (supra).
24. In the case of Microsoft Corporation v. Rajendra Pawar & Anr. reported as 2008 (36) PTC 697 (Del.), considering the aspect of punitive damages, it was held as below:-
"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 Digitally signed by BRIJESH BRIJESH KUMAR GARG KUMAR GARG Date: 2025.01.07 page 15 of 17 16:49:08 +0530 CS (Comm.) 41/2023 D.J.(Commercial)-01/Shahdara/KKD/Delhi 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 from taking advantage of its own wrong by escaping prosecution or detection."(emphasis added)
25. In a suit filed by the plaintiffs herein in the year 2008, entitled M/s Inter Ikea Systems BV vs. M/s Ikea Furniture Pvt. Ltd. [CS(OS) 523/2008] that was decided on 26.3.2014, and where, despite service, the defendant therein had deliberately stayed away from the suit proceedings, following the principle laid down in the case of Tata Sons Ltd. vs. Hoop Anin & Ors., reported as 188 (2012) DLT 327, where punitive damages to the tune of Rs. 5 lacs were awarded in favour of the plaintiff, the court had proceeded to award punitive damages.
26. In the case of Cartier International AG and Ors. vs. Gaurav Bhatia and Ors. reported as 226 (2016) DLT 662, echoing the view taken in the captioned case, it was held that where a defendant chooses to stay away from the court proceedings, he should not be permitted to enjoy the benefits of evasion of the said proceedings, had imposed punitive damages on the defendant therein to the tune of Rs. 1 crore.
27. Another salutary object behind awarding punitive damages is to ensure that it acts as a deterrent against fence sitters who may find it lucrative to imitate registered trademarks of leading and established brands in the industry. It is with the said purpose that those who are brought before the court must be made to feel the pinch of coughing up damages from their illegal gains. If only token damages are imposed on them, then it would hardly hurt them and they would continue indulging in infringing activities. India has leaped into the league of those countries that have made giant economic advances. Several companies from all over the world have entered the Indian markets to tap its large consumer base and have made substantial investments with the idea of earning profit, promoting and establishing their business. The said business helps in generating employment and earning revenue for the country. If the courts do not extend adequate protection to them in respect of their intellectual property rights including patents, trademarks and copyrights, they are bound to have serious second thoughts about doing business here.
(emphasis
BRIJESH
supplied)
Digitally signed by
BRIJESH KUMAR
KUMAR GARG
Date: 2025.01.07
GARG 16:48:58 +0530
CS (Comm.) 41/2023 page 16 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi
32. In view of the above judgments and in view of the material on record, an 'exparte' decree in favour of the plaintiff and against the defendant is passed, in terms of prayer clause -32 (a) and (b).
33. In lieu of the prayer for delivery-up of all finished and unfinished goods, damages, and rendition of account, as contained in prayer clause- 32 (c), (d) & (e) of the plaint, it is held that the plaintiff is also entitled to a decree for a sum of Rs.10,00,000/- (Rs. Ten Lakhs Only), by way of punitive/ exemplary damages against the defendant. The damages awarded to the plaintiff, shall be payable by the defendant, within a period of six months from passing of the judgment, failing which the aforesaid amount of Rs.10 Lakhs shall carry an interest @9% per annum w.e.f. the date of decree, till its realization.
The Costs of the suit are also awarded in favour of the plaintiff and against the defendant.
The suit of the plaintiff stands decreed accordingly.
The decree sheet be prepared accordingly.
File be consigned to record room, after due compliance.
Digitally signedAnnounced in the open Court BRIJESH by BRIJESH KUMAR GARG on this 07th Day of January, 2025 KUMAR Date:
GARG 2025.01.07
16:48:44 +0530
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi/NR
CS (Comm.) 41/2023 page 17 of 17 D.J.(Commercial)-01/Shahdara/KKD/Delhi