2005 (11) TMI 508

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.... be mainly dealing with the manufacture 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 ....

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....aintiff. There was also violation of the registered trademark of the plaintiff. 8. At the stage of filing of the suit, interim orders were granted and Local Commissioner was also appointed to seize the goods in question. The goods were taken possession of and then released on superdari 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 Sh....

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....tten statement after taking time for the same and a decree was passed under Order VIII Rule 10 of the Code of Civil Procedure, 1908. Against the claim of tentative damages of Rs. 5 lakhs, Rs. 3 lakhs was awarded as damages. Similarly in Hindustan Machines v. Royal Electrical Applies, 1999 (19) PTC 685, a sum of Rs. 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 Rs. 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 Rs. 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 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 distinct....

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....the time he commits torts, then when he is caught he should be punished twice as heavily in order to make up 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 who 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. 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 Rs. 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 ....