Castrol Limited And Anr. vs Manoj Duggal And Anr.
2006 Latest Caselaw 1690 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Defendants failed to file a written statement and after causing appearance to be made through counsel have disappeared from the scene.

2. On 17.7.2006, plaintiff was called upon to lead evidence noting that since damages have been claimed, same have to be established.

3. Affidavit by way of evidence has been filed. 8 documents have been proved as Exhibits P-1, P-2, P-3, P-4, P-5, P-6, P-7 and P-8.

4. Before I deal with the evidence, a brief resume of the case may be set out.

5. Plaintiff No. 1 claims to be a company incorporated in England. Plaintiff No. 2 claims to be a company incorporated in India.

6. It is stated that plaintiff No. 1 was originally incorporated in 1990 as C.C. Wakefield & Co. Ltd. Name was changed to Castrol Ltd. in the year 1960. That since 1960 first plaintiff has been carrying on business under the trade mark/trade name 'Castrol'. In India, plaintiff No. 1 has obtained registration pertaining to petroleum products under class 4. It is stated that plaintiff No. 1 is additionally the registered proprietor of the trade mark 'Castrol GTX'. Registration has been obtained under class 4 pertaining to lubricants and fuels. It is stated that apart from the registrations obtained pertaining to the trade marks aforesaid, the registration of the mark depicting a motorcycle rider and hockey sticks forming the backdrop of the trade dress of the plaintiff has also been obtained.

7. Various products detailed in para 13 of the plaint are stated to be marketed, each under the banner 'Castrol'.

8. Qua plaintiff No. 2 it is stated that for operation in India, plaintiff No. 2 has the necessary permission/license of plaintiff No. 1 to sell petroleum products under the trade mark/trade name 'Castrol', 'Castrol GTX' as also to use the distinctive trade dress having a devise of a motor cycle rider and hockey sticks thereon.

9. Grievance is to the act of the defendants in selling petroleum products using the trade mark 'Castrol' as also adopting a trade dress which is near identical or deceptively similar to that of the plaintiffs.

10. Affidavit by way of evidence filed by Shri Muralidharan Balasubramanian under whose signatures the suit has been filed establishes, vide Ex. P-1, the special power of attorney in his favor to institute the suit, sign and verify the plaint. Affidavit establishes and proves Ex. P-2 as the Ex. P-3 and P-4 being the registration certificates in respect whereof pleadings have been made in the plaint and as noted above.

11. The evidence proves Ex. P-5, the container in which the plaintiffs are selling multi grade engine oil

12. Ex. P-5 shows that the plaintiff is selling engine oil in a container having red, white and green colour on which container the trade mark 'Castrol' is printed on the white strip and beneath the same the letters CRB are printed.

13. The witness has proved Ex. P-7 being containers used by the defendants to sell their products. The containers are embossed with plaintiffs' trade mark, namely, 'Castrol' as also the letters CRB beneath the word 'Castrol'.

14. Containers also use the three colours used by the plaintiffs, namely red, green and white.

15. The witness has proved Ex. P-8 being a pouch made out of probably glazed paper where the motorcycle with the rider i.e. device used by the plaintiffs stands embossed. Two hockey stick devises in red and green colour used by the plaintiffs is also being used by the defendants.

16. The witness has also proved Ex. P-6 being a complaint lodged with the SHO, PS Shashtri Nagar requiring a raid to be conducted.

17. In para 19 of the affidavit, witness has deposed that pursuant to the complaint, Ex. P-6, FIR was registered by PS Shashtri Nagar under Section 63/68 of the Copy Right Act and Section 420/467/487 IPC. A raid was conducted in which the offending articles were seized.

18. Having perused the evidence, relevant extracts whereof have been noted above, it is established that defendants have infringed the trade mark of the plaintiffs as also the trade dress of the plaintiffs.

19. The plaintiffs have led no evidence whatsoever to show as to what was the quantum of seizure made when raid took place.

20. I am completely in dark to assess damages.

21. What has pained me is that on 17.7.2006 I had recorded that in the absence of a defense I can proceed to decree the suit but since prayer for damages was made eyidence was required.

22. No evidence towards damages has been led. Evidence which has been led was really not needed for the reason in the absence of a written statement and in view of the documents filed along with the plaint, I could have proceeded under Order 8 Rule 10 except qua relief of damages.

23. I accordingly dispose of the suit passing a decree in favor of the plaintiff and against the defendant in terms of prayers (a), (b), (c) and (d).

24. As regards prayer (e), satisfied that the defendants have blatantly infringed upon the right of the plaintiff by copying plaintiffs' trade mark as also trade dress and additionally the distinctive get-up showing motorcycle with a rider and two hockey sticks, I award punitive damages noting that the plaintiff has not bothered to lead any evidence in respect of the recovery made when seizure took place by the police.

25. In respect of prayer (e) I award punitive damages in sum of Rs. 10 lacs for dilution of plaintiffs' trade marks as also infringement thereof.

26. Damages are awarded in favor of the plaintiffs and against the defendants, jointly and severally.

27. Plaintiff would be entitled to proportionate costs.