Castrol Limited And Anr. vs Sh. Nanak Chand And Anr.
2005 Latest Caselaw 1691 Del

JUDGMENT

Swatanter Kumar, J.

1. The plaintiff No. 1 Castrol Ltd. is a company incorporated under the laws of the England and having its office in U.K. Plaintiff No. 2 Castrol India Ltd is also a company incorporated under the Indian Companies Act, 1956 and having its registered office at Mumbai. Plaintiff No. 2 carries on business on a large and extensive scale in processing of and trading in high-grade automotive and industrial lubricants, greases, brake fluids, wood preservatives, metal cleaning compounds and various specialty products in India. Mr. Murlidhar Balasubramanian is the Manager Trademarks Operations of plaintiff No. 2 and is fully empowered and authorised to sign and verify the pleadings.

2. Trademark 'CASTROL' is registered in India under No. 260626 dated 7th November, 1969 in respect of industrial oil and greases and the trademark 'CASTROL' was also registered under No. 373759 in Class 4 as of 23rd March, 1981 in respect of various lubricants. In a similar way, the trademark of the plaintiffs is registered in relation to different items. The plaintiffs are the manufacturers and merchants of a wide range of products including, in particular, oils, lubricants, greases, etc. meant for use for different purposes.

3. The plaintiffs use specific packing materials in the cartons, plastic and tin containers for sale of their products. The plaintiffs are also the owner of the copyright of the artistic work shown on the said packing materials. The said artistic work is the original artistic work produced by the plaintiffs and according to the plaintiffs, nobody has the right to use the same. In paragraph Nos. 11 to 14, turnover, expenditure on advertisement and the income in India and abroad have been stated by the plaintiffs. However, it suffices to make a reference to the figures of last three years mentioned in the plaint:

(i) The total turnover of the business carried on by plaintiff No. 1in UK and other countries excluding that of associate companies in India and also excluding turnover applicable to fuels:

  Year     Value  Pounds Sterling 
1997-98         2936000,000
1998-99         2837100,000
1999-2000       2943700,000
 

(ii) Approximate annual turnover of goods sold by plaintiff No. 1 under the Trademark CASTROL in UK and the world over:
  Year         Pounds Sterling
1997         1878000,000
1998         1816400,000
1999         19166300,00
 

(iii) Annual turnover of the goods sold by plaintiff No. 2:
 
 Year       Turnover Rs.
December, 1997   9,93,03,00,000.00
December, 1998  10,79,00,00,000.00]
December, 1999  11,95,00,00,000.00
 

(iv) Annual expenditure incurred by plaintiff No. 2 in India on advertising and publicity of its products:
  Year              Turnover  Rs.
December, 1997    4287,00,00.00
December, 1998    4000,00,000.00
December, 1999    4600.00.000.00
 

4. It is stated by the plaintiffs that during the third week of October, 2005, they came to know that the defendants are printing and supplying the duplicate cartons/printed material under the identical trademarks of the plaintiffs. Not only that, they are even giving the name and address of the plaintiffs' company. After receiving the said information, the plaintiffs, through their representative, filed an FIR on 22nd October 2002 being FIR No. 152/02 under Sections 63 and 65 of the Copyright Act. A large number of duplicate cartons/packing material were recovered from the premises of the defendants during the raids conducted after filing of the FIR. It is clear that the defendants are using the packing logo of the plaintiffs and are disposing of their goods as if they were of the plaintiffs. The defendants have not been authorised by the plaintiffs to sell any of their items and, as such they are causing immense confusion and deception and are misrepresenting to the public at large thereby causing great prejudice to the reputation and goodwill of the plaintiffs. This misrepresentation by the defendants is bound to cause huge losses to the plaintiffs.

5. In the above circumstances, the plaintiffs have filed the present suit for passing of a decree of injunction in relation to the infringement of trademark and copyright and also restraining the defendants from printing, selling empty cartons, packing materials under the trademark Castrol, CASTROL GTX EXTRA, CASTROL CRB, MULTIGRADE 20/W/40 (ENGINE PROTECTION), Castrol PSO Pumpset Oil, Castrol T.Q oil, Castrol GTX Extra, Castrol CRD Extra for diesel engine. The plaintiffs also pray for rendition of accounts and for damages to the extent of Rs. 5 lakhs and for delivery of infringing materials.

6. In the suit, the defendants were served. Defendant No. 1 appeared before the court and sought time to file written statement and the same was granted vide order dated 21st August 2003. Defendant No. 2 was not served and finally vide order dated 9th September, 2004, the said defendant was permitted to be served by substitute service by way of publication in the edition of 'Statesman'. Despite such service, nobody appeared on behalf of defendant No. 2 and as such defendant No. 2 was ordered to be proceeded against ex parte in the present suit vide order dated 23rd March, 2005. Liberty was granted to the plaintiffs to file ex parte evidence as even defendant No. 1, after filing reply to the application [IA No. 11097/02] failed to appear and did not file written statement despite grant of opportunities. Defendant No. 2 was also proceeded against ex parte vide order dated 21st July 2005 and the plaintiff was granted liberty to file affidavit by way of evidence. The plaintiffs took some adjournments and finally affidavit by way of evidence was filed and arguments were heard ex parte on 22nd November, 2005. In the affidavit filed on behalf of the plaintiffs, the averments made in the plaint have been reiterated. In paragraphs 16 of the plaint, it has specifically been stated that nefarious activities of the defendants are resulting in infringement of the trademark, copyright of the plaintiff and that large materials were recovered in furtherance to FIR No. 152/02 by the Police. This fact clearly establishes the fact that the defendants are infringing the copyright as well as the trademark logo of the plaintiffs and are using the same packages and containers for disposing of the goods like the plaintiffs. The plaintiffs have also filed a number of documents on record. The plaintiffs' packing material, which is used by them, has been placed on record at page 50 of the document file while that of the defendants is at page 51. A bare glance on both these packings clearly shows that the defendants are violating and infringing the rights of the plaintiffs granted to the plaintiffs under the provisions of Trademarks Act, Copyright Act and under the common law. They have also filed copies of the various certificates of registration issued by the Trademark Authority registering the logo and trademarks of the plaintiffs.

7. The learned counsel appearing for the plaintiff has relied upon the judgment of this court in the case of Time Incorporated v. Lokesh Srivastava 2005(3) PTC 3 (Del) to argue that the present case is a fit one wherein the plaintiffs should be awarded damages of Rs. 5 lakhs as prayed in the petition. But in the entire affidavit filed by the plaintiffs by way of evidence and also the plaint, there is no reference as to the basis on which the plaintiffs have based their claim for recovery of damages for Rs.5 lacs. For the grant of damages, it is obligatory upon the part of the plaintiffs to lead cogent and proper evidence in support of such their claim. Whatever be the nature of claim of damages, it essentially has to be established by positive evidence. No document has been filed by the plaintiffs which could even remotely suggest the basis for claiming such damages. Direct or remote damages must be essentially proved in accordance with law and if there is no evidence, the Court cannot assume in law that every claim for grant of injunction should always grant damages as a consequential relief. A balled averment made in the plaint with regard to damages would not be per se an evidence for justifying the claim of damages. In the case of Time Incorporated (Supra), relied upon by the learned counsel for the plaintiffs, the Court had granted punitive and exemplary damages for flagrant infringement of the plaintiff's trademark. Lack of even a basic averment in the affidavit would in no way further the cause of the plaintiffs. In the absence of any evidence, the plaintiffs would not be entitled to claim damages. A sum of Rs.5 lacs has been claimed by the plaintiff in the plaint as damages on account of loss suffered in business. This per se is not a punitive damages in the decision of the Court. Loss of business is a matter of accountancy and must be proved on record. The plaint and also the affidavit lack the requisite particulars about the damages.

8. On the basis of the ex parte evidence, documentary and by way of affidavit, led by the plaintiffs, it is clear that the plaintiffs have been able to establish and prove their case so as to entitle them to get a decree for injunction. The action of the defendants is apparently in violation of law and the protection available to the plaintiffs in law under the legislation as well as common law. The cartons placed on record clearly establish the case of infringement in favor of the plaintiffs and against the defendants. They are a copy identical in respect of the logo design and even the colour scheme of the plaintiffs.

9. For the reasons aforestated, a decree for injunction is passed in favor of the plaintiffs and against the defendants in terms of clause (a), (b) and (c) of paragraph 31 of the plaint. The counsel appearing for the plaintiffs did not press for the relief as prayed for in clause (d) and (f) of the same paragraph.

10. The Registry is directed to draw a decree in terms of this judgment. The plaintiffs would also be entitled to their proportionate costs. The suit and IA No. 11097/2002 are finally disposed of.