2005 (11) TMI 508

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e of cycle and cycle parts and the Japanese Joint Venture partner, Honda Motor Co. Ltd. is an internationally renowned name and trademark HONDA. The Joint Venture, thus, adopted the trademark HERO HONDA to reflect the goodwill of the business of both the two Joint Venture Groups as an arbitrarily coined trademark. 3. The plaintiff has set out the sales figures in para 5 of the plaint as under:- Year Sales (Rs. in Crores) 01.04.1990 - 31.01.1991 215.52 01.04.1991 - 31.01.1992 275.72 01.04.1992 - 31.01.1993 307.27 01.04.1993 - 31.01.1994 369.99 01.04.1994 - 31.01.1995 483.85 01.04.1995 - 31.01.1996 640.7 01.04.1996 - 31.01.1997 782.83 01.04.1997 - 31.01.1998 1160.72 01.04.1998 - 31.01.1999 1552.9 01.04.1999 - 31.01.2000 2269.87 01.04.2000 - 31.01.2001 3192.96 01.04.2001 - 31.01.2002 4539.49 01.04.2002 - 31.01.2003 5194.58 01.04.2003 - 31.01.2004 5700 4. The promotional and advertisement expenses of the plaintiff are set out in para 6 of the plaint as under:- Year Expenditure (Rs. in Lakhs) - 01.04.1990 - 31.01.1991 459.55 01.04.1991 - 31.01.1992 363.49 01.04.1992 - 31.01.1993 551.47 01.04.1993 - 31.01.1994 674.94 01.04.1994 - 31.01.1995 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rdari to the defendant. The defendant, however, did not put in appearance and was proceeded ex parte. The plaintiff has filed the affidavit of ex parte evidence of Shri Sanjay Mittal, the constituted Attorney of the plaintiff. The witness has proved the certified copy of the Board Resolution of the plaintiff along with the Power of Attorney as Exhibit P-1, which authorised institution of the suit. The sample invoices of the plaintiff have been proved as Exhibit P-2 and the advertisements of the plaintiff as Exhibit P-3. The Certificate of Registration of the two trademarks referred to above have been proved as Exhibit P-4 and Exhibit P-5. The plaintiff has proved as Exhibit P-6 the assignment made by M/s. Shobhagya Advertising Services in respect of the logo and as Exhibit P-7 the assignment in respect of the packaging by M/s. Mansa Packagers Pvt. Ltd. The plaintiff has relied on the affidavit of one Shri Rajiv Manchanda filed in the proceedings showing the cash memo of purchase of the defendant as well as the photographs of the product of the defendant. The said affidavit has been exhibited as Exhibit P-8 while the photographs of the product and packaging are exhibited as Exhibit ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....999 (19) PTC 685, a sum of ₹ 3 lakhs was awarded. In the recent judgments, this Court in CS (OS) No. 2711/1999 titled 'L.T. Overseas Ltd. v. Guruji Trading Co. and Anr.' decided on 07.09.2005 had granted ₹ 3 lakhs damages in a similar case. In the present case, punitive damages have not been specifically claimed. 16. Learned counsel for the plaintiff has, however, drawn the attention of this Court to the judgment of this Court in Time Incorporated v. Lokesh Srivastava and Anr. 116(2005)DLT599 where apart from compensatory damages of ₹ 5 lakhs, punitive damages have also been awarded. It would be useful to reproduce paras 7 and 8 of the said judgment, which are as under:- "7. Coming to the claim of ₹ 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 ac....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... they know that the same are objectionable and unlawful. In the present case, the claim of punitive damages is of ₹ 5 lacs only which can be safely awarded. Had it been higher even this court would not have hesitated in awarding the same. The 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." 17. Learned counsel for the plaintiff states that damages have been claimed in the present suit, though it is not specified separately as to the nature of damages. Learned counsel further states that in any case the plaintiff should be entitled to at least the damages of ₹ 5 lakhs. 18. I am in agreement with the aforesaid submission of learned counsel for the plaintiff that damages in such cases must be awarded and a defendant, who chooses to stay away from the proceedings of the Court, should not be permitted to enjoy the benefits of evasion of court proceedings. Any view to the contrary would result in a situation where the defendant who appears in Court and submits its account books would be liable for damages, while a party which chooses to stay away from court ....