Tata Sons Ltd. vs A.K. Chaudhary & Anr.
2009 Latest Caselaw 1155 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                        CS (OS) No.842/2002

                       Judgment reserved on:     5th March, 2009

%                      Judgment decided on :        6th April, 2009

Tata Sons Ltd.                                    ......Plaintiff
                       Through : Mr. Pravin Anand, Adv. with
                                 Mr. J. Prashant Reddy, Adv.

                       Versus

A.K. Chaudhary & Anr.                            .....Defendants
                   Through: None
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                     Yes

2. To be referred to Reporter or not?                                  Yes

3. Whether the judgment should be reported                             Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The case of the Plaintiff is that the Plaintiff company,

established in the year 1917 as a body corporate and is the principal

investment holding company of TATA, which is India‟s oldest, largest

and best - known conglomerate, with a turnover of over US$14,251

million or Rs. 65, 424 crores for the financial year 2003-04. Its genesis

was in 1868 when Jamsetji Nusserwanji Tata set up a private trading

firm with a capital of Rs.2000/-.

2. The enterprises promoted by the Plaintiff company have laid

the foundation in the industrial core sectors, pioneering the textiles,

steel, power, chemicals, hotels and transport industries in India.

3. With the changing global scenario, TATA have branched out

into computers and computer software, electronics, telecommunications,

financial services, mutual funds, food processing, tea and publishing.

4. The first TATA Enterprise was founded by Jamsetji Tata

over 100 years ago with a textile mill in Central India. Over the years,

TATA enterprises entered various fields of commercial activities.

5. The reputation of the TATA trademark in India has further

been recognized by the then Prime Minister of India, Shri Atal Behari

Vajpayee in his letter, wherein he states:

"It was the legendary late JRD Tata who brought in the concept of „brand name‟ in the India mindset and the very word „Tata‟ inspired confidence in any product or service offered to the consumer".

6. The Encyclopedia Britannica has a special mention of the

trademark TATA and its fame. The pioneering efforts of Jamsetji Tata

are referred to in laudatory terms in the Encyclopedia Britannica and the

Tata company TISCO has been referred to as "the nucleus of a vast

industrial complex including not only textiles, steel and electronic

power but also chemicals, agricultural equipment, trucks, locomotives

and cement." In fact, the House of Tata is the only Indian industrial

business group that is mentioned in the Encyclopedia Britannica.

7. The Plaintiff company is also the registered proprietor of the

trademark "TATA" in relation to various specifications of goods in

various classes, in India.

8. The Plaintiff company is the proprietor of the trademark

TATA by virtue of priority in adoption, continuous and extensive use

and advertising, and the reputation consequently accruing thereto in the

course of trade.

9. In early 2001, the Plaintiff commissioned the creation of an

artistic work comprising of a logo entitled "TATA World" to be used

on its website of the same name. The website with the url

http://www.tataworld.com prominently displays the said logo. The logo

comprises of the words "TATA" and "WORLD" artistically represented

in a stacked form. The said stylized and stacked words are semi - circled

by two distinctive swirls, one on the top left and another at the bottom

right portions, thus signifying and denoting the Tata Group‟s "world".

The said artistic work was created for the Plaintiff in return for adequate

consideration.

10. The exclusivity and fame of the TATA trade mark in India as

well as abroad is illustrated further by various articles/write ups that

have appeared in leading newspapers and journals, copies of which are

filed herein. Specific note may be taken of the following excerpts :-

• International Edition of Far Eastern Economic Review, Hong

Kong dated June 9-15, 1968.

„TATA' is a household word in India and even outside the name

stands for successful industrial management III difficult

circumstances" .

• Article 'Ratan Tata rebuilds an Indian behemoth' appearing in the

PEOPLE IN FOCUS section in Financial Times, dated 11th

August, 2000.

"Go anywhere in India and you cannot fail to see the word TATA

everywhere, on trucks, cars, electrical goods and even tea. For

almost a decade Mr. Tata has sat atop the Indian conglomerate,

which operates in 25 countries and exports to more than 100 .... "

11. Knowledge of Defendants' unlawful activity:

The Plaintiffs in first week of March, 2002 came to know

that the Defendant No. 1 was openly selling steel cutlery and other

similar items, under the trademark TATA. An employee of Tata

Honeywell Limited, a TATA group company, purchased the Defendants

products bearing the impugned mark which shows copying by the

defendants of trademark TATA and the artistic work TATA WORLD

logo.

12. The Plaintiff submits that the defendants are promoting and

passing themselves off as a company belonging to the Tata Group, or

having some affiliation or endorsement with the Tata Group that has

been approved or authorised for the manufacture and sale of "steel

cutlery" products.

13. The defendants are using the TATA mark wrongfully and

illegally and are thereby misrepresenting to the public at large that they

are a part of the Tata Group.

14. The marks TATA and TATA STEEL are boldly printed on

the literature supplied along with the impugned products. The

defendants have also substantially reproduced the Plaintiff‟s artistic

work "TATA WORLD" logo in which the Plaintiff has copyright.

15. The defendants have sought to give an impression in their

literature as though they have business activities under the name/mark

TATA spread out across the world. This act of the defendants amounts

to passing off and is calculated to increase their sale of the impugned

products and in the process misappropriating the reputation and

goodwill of the Plaintiff.

16. The use of an identical mark by the defendants in relation to

the steel cutlery and other related goods would cause immense

confusion and deception amongst the purchasing public and members of

trade as regards the source of their goods and business. Such persons

are bound to consider if:

a) the defendants are a part of the famous and immensely reputed

TATA STEEL, namely Tata Iron and Steel Company of the

TATA Group; or

b) the defendants have a direct nexus or affiliation with the Plaintiff

or the House of TATA; or

c) the defendants have been granted a license to use the trademark

TATA in relation to the manufacture and sale of steel cutlery; or

d) the business of the defendants has been endorsed by the Plaintiff

and therefore is characteristic of the same level of quality and

reliability as is synonymous with the goods and services of the

Plaintiff/ TATA companies.

17. By the substantial reproduction of the Plaintiff's TATA

WORLD stacked logo by the defendants, they have infringed the

copyright therein.

18. It is an accepted proposition of law that famous and well

known trademarks especially those that embody an aura of pre-eminent

excellence and quality, such as the Plaintiff's trademark TATA, are

generally given broad protection.

19. The Plaintiff company has in the past successfully enforces

its rights over the trademark TATA in relation to various goods, even

totally different and unrelated goods and services from their existing

wide range of operations, for example, pressure cookers, lottery tickets,

newspapers, etc. by filing suits for permanent injunction against various

parties, as is listed below:

HIGH COURT DECISIONS IN FAVOUR OF TATA SONS LIMITED, THE PLAINTIFF COMPANY

Title Suit No. Order

Tata Sons. Vs. Manu 159/99 Ex-parte interim injunction granted Kosuri & Anr. restraining the defendants from using nine domain names including jrdtat.com, ratantata.com, tatahoneywell.com, tatassl.com, tatayodogawa.com, tatahydro.com, tatateleservices.com, tatapowerco.com, all containing the trademark/name TATA as a part thereof, on the Internet or otherwise.

Tata Sons Vs. 1991/99 Ex parte interim injunction granted Bodacious Tatas restraining the defendants from using the domain name Bodacious-

tatas.com or any domain name containing the word TATA as a part thereof on the Internet or otherwise.

Tata Sons Limited Vs. 2568/96 Ex parte Injunction granted and the J. K. Pandey Defendants restrained from using the trademark TATA in relation to any books or publications.

Tata Son Limited & 2367/98 Ex-parte injunction granted and the Anr. Vs. Kirti Sherman defendants restrained from using the & Ors. trademark tatayellowpages.com on the internet as a domain name or otherwise.

Tata Sons Vs. Ghassan 1672/99 Ex parte interim injunction granted Yacoub & Ors. restraining the defendants from

using the domain name tatagroup.com or any domain name containing the word TATA as a part thereof on the Internet or otherwise.

Tata Sons Limited Vs. 2615/99 Defendants restrained permanently Windals Auto Limited from using the domain name & Anr. tatasons.com or any domain name containing the word TATA as a part thereof on the Internet or otherwise.

Tata Sons Limited Vs. 617/97 Interim injunction granted Mr. Sahni & Ors. restraining the defendants from using the name TATA in respect of lottery tickets or any printed matter.

Tata Sons Limited Vs. 388/01 Ex parte Interim injunction granted H. p. Singhal & Ors. restraining the defendants from using the name TATA India Limited or any trade name/mark of which TATA forms a part of trading style.

Tata Sons Limited Vs. 2367/01 Ex parte Interim injunction granted A & Co. & Anr. restraining the defendants from using the trademark „Bhutan TATA Super‟ with respect to lottery tickets or any other printed matter, or any other mark of which TATA forms a part.

Tata Sons Limited Vs. 842/02    Ex parte Injunction granted and the
A. K. Chaudhary &               Defendants restrained from using
Anr.                            the trademark TATA and the
                                copyrighted original artistic "TATA
                                WORLD" logo in relation to steel
                                cutlery.

Tata Sons Vs. Fashion 1176/02 Ex parte interim injunction granted Limited against use of domain name tatainfotecheducation.com or any domain name containing the word TATA as a part thereof on the Internet or otherwise.

Tata Sons Limited Vs. 1922/03 Ex parte interim injunction granted Suresh Jain & Ors. against the defendants restraining their use of the trademark TA-TA with respect of pipes.

It was also recognized that TATA is a well - known mark.

Tata Sons Limited & 266/04 Ex parte interim injunction granted Anr. Vs. Tamal Das against use of domain name Gupta & Ors. tataindicomdirectory.com.

Permanent injunction has been passed against the use of the domain

name, which has also been transferred.

Tata Sons Vs. Rajinder 592/04 Ex parte interim injunction granted Kumar Nahta & Ors. against use of mark TATA or any similar mark in relation to hosiery goods.

Tata Sons Limited Vs. 1228/04 Ex parte interim injunction granted Amit Mahna & Ors. against use of mark TATA or any similar mark in relation to pressure cookers.

II. DECISIONS OF THE ARBITRATION AND MEDIATION

CENTRE, WIPO, IN FAVOUR OF TATA SONS LIMITED

Title Case No. Domain Name(s) Decision

Tata Sons Limited Vs. D2000-0049 Tata.org Domain The Advanced name Information transferred Technology Association Tata Sons Limited Vs. D2000-0479 Bodacious-tatas.com Domain D & V Enterprises name transferred Tata Sons Limited Vs. D2000-0755 Tatamail.com Complaint Cyber Networks withdrawn;

Respondent voluntarily agreed to transfer the domain name Tata Sons Limited Vs. D2000-1713 Tatapowerco.com Domain Manu Kosuri Tatahydro.com name Tatawestside.com transferred Tatahoneywell.com Tatayodogawa.com Tatateleservices.com Tatassl.com Tatatimken.com Jrdtata.com Ratantata.com

Tata Sons Limited Vs. D2001-0627 Tatapower.com Complaint Jagjit Jain withdrawn;

Respondent voluntarily

agreed to transfer the domain name Tata Sons Limited Vs. D2001-0974 Tataamex.com Domain Hasmukh solanki Tata-amex.com name Amextata.com transferred

Tata Sons Limited Vs. D2004-0083 Tatainfocom.com Domain Renjith R. name transferred

20. Vide order dated 31st October, 2002, this Court appointed

Local Commissioners to visit the premises of Defendant Nos. 3, 4, 5, 7,

8 and 9. On 9th September 2002, Mr. Arvind Nayar, Mr. Vipin Kumar

Marya, Mr. Gautam Narayan and Mr. Gaurav Malhotra visited the

premises of Defendants Nos. 3, 4, 6, 8 and 9 and seized the impugned

infringing goods, which were later given back to the Defendants on

superdari.

21. The defendant No.7 has already arrived at settlement and suffered a

decree for permanent injunction and an order in this respect was passed

on 3rd April, 2007. Defendants 1 to 6 and 8 to 9 have already been

proceeded ex parte vide order dated 3rd August, 2005. Since the said

defendants had filed the written statement in the matter, therefore, the

following issues were framed on 28th August, 2006:-

i) Whether the defendants have infringed the trademark TATA of the plaintiff, if so to what effect ?

ii) Whether the defendants are passing off their acts as having associated with the plaintiff ?

iii) Whether the plaintiff is entitled for relief of injunction ?

iv) Whether the plaintiff is entitled for damages in the amount of Rs.20 lakhs ?

v) Whether the plaintiff is entitled to an order of delivery up of goods, blocks, dyes, stationery, packaging material or other printed material bearing the impugned trade

mark for the purpose of destruction to the representative of the plaintiff ?

vi) Whether the plaintiff has any cause of action against the defendant No.7 ?

vii) Relief.

22. As per order of the court, the plaintiff has produced the

evidence by way of affidavits of Mr.V.Gurumoorthi, Executive Officer

(Accounts & Admn) of Tata Services Ltd and Mr.Sanjeev Sharma,

Chartered Accountant. In the affidavit of Mr.V.Gurumoorthi, he has

reaffirmed the statements made in the plaint. The power of attorney in

his favour is proved as Ex.P-1. The financial performance of the Tata

Group is proved as Ex.P-2. The details of the Enterprises promoted by

the plaintiff company has been exhibited as Ex.P-3. The list of various

registrations granted in favour of the plaintiff in various classes are

marked asEx.P-4 and Certificate of use in legal proceedings for the trade

mark TATA is marked asEx.P-5. The original print out of the Web page

showing the logo of Tata World is filed as Ex.P-6 and in order to prove

the logo literature which has been filed by the plaintiff, Ex.P-7 is

annexed. The reports of the Local Commissioners filed are marked as

Ex.P-8 to P-11.

23. In another affidavit of Mr.Sanjeev Sharma, it is stated that

the principle to be adopted while accessing compensatory damages

suffered by the plaintiff on account of the defendants infringing

activities, the computation of damages can be on the basis of the losses

suffered by the plaintiff. It is stated that the defendant No.1 and 2 have

been in the business of selling of cutlery and similar items atleast in

March, 2002 as it is evident by the guarantee card issued by defendant

No.1 to an employee of the plaintiff group of Companies on 3 rd March,

2002. The said guarantee card is exhibited as Ex.PW-2/1. The

defendant No.3 to 6, 8 and 9 are the distributors of the defendant No.2.

On the date of investigation, the defendant had the stock of 3750 cutlery

sets under the trade mark TATA. The said investigation report is

exhibited as Ex.PW-2/2. In Para 8 of his affidavit, it is mentioned that

the Local Commissioner‟s report indicates that around 2200 cutlery sets

with packaging and 1000 other similar items under the trade mark

TATA were seized and it appears that the defendants were using the

said trademark for about 8 months on the date of filing of the suit. The

retail price of per cutlery set is Rs.250/-. The packaging showing the

said amount is already marked as Ex.PW-2/3. Other similar items

bearing the trade mark TATA having the retail price as Rs.105/- have

been filed and exhibited as Ex.PW-2/4. The calculation of the total

amount is given in Paras 9 to 11 of his affidavit. It is stated that atleast

the plaintiff has suffered a loss of profit of Rs.12,26,000/- on account of

the activities of the defendants.

24. I have heard learned counsel for the plaintiff and have also

gone through the relevant pleadings and documents placed on record. It

is an undisputed fact that the plaintiff has been continuously and

consistently using the trade mark and trade name TATA from the year

1917. The trade mark TATA is the registered trade mark in various

classes of goods in favour of the plaintiff. The said trade mark TATA

has acquired unique goodwill and reputation in favour of the plaintiff

and ipso facto due to the long and continuous user this trademark is

highly distinctive trade mark within the meaning of section 9 of the Act.

25. The said trade mark TATA is not only registered in India but

is also registered in various other countries of the world. It is not in

dispute that the mark TATA has been protected from time to time by the

courts in relation to the similar/dis-similar goods adopted and used by

the infringing parties. Hence, this trade mark is protected under Section

29(4) of the Act, 1999. In view of the facts and circumstances

mentioned above, it is a well known trade mark within the meaning of

Section 2(z)(b) of the Act, because of its distinctiveness and residual

goodwill and reputation, in fact, the trade mark TATA cannot be

appropriated by any party in India in relation to any merchandise

goods/services/trade name otherwise it would be clear case of violation

of the rights of the plaintiff. In the present case, no doubt the defendant

is using the trademark TATA in relation to cutlery goods and the

plaintiff may not have commercial activities of the same product but use

of the said trade mark by the defendant is an infringement of the

plaintiff‟s trade mark within the meaning of Section 29(4) of the Act.

26. The plaintiff has clearly established his case of infringement

of trade mark, therefore, the suit of the plaintiff for infringement of trade

mark is accordingly decreed.

27. Now as far as the question of passing off is concerned, it is clear

that the defendants are indulging in the acts of passing off by

representing their business as that of or associated with the plaintiff by

using the impugned trade mark/name of the plaintiff. The defendants

have defrauded the general public and are likely to continue to

mislead/deceive or confuse the potential customers into believing that

the defendants have the approval or license from the plaintiff which in

fact is not true. It appears, therefore, that the adoption and use of the

said trade mark by the defendant is only with a view to making illegal

profits out of the same. The adoption of the said highly distinctive trade

mark TATA by the defendant is malafide and the defendants‟ activities

deserves to be permanently restrained by this court in relation to the

relief of passing off also.

28. In passing off action, one has to see as to whether the

defendant is selling goods/service so marked to be designed or

calculated to lead purchasers to believe that they are plaintiffs‟ goods.

The law of passing off prevents commercial dishonesty representing

one‟s goods as the goods of somebody else. It is well settled law that an

action for passing off is a common law remedy being an action in

substance of deceit under the law of Tort. In Warnik Vs Townend &

Sons (HULL) Ltd. 1979 AC 731, Lord Diplock identified the following

five characteristics which must be represented in order to create a valid

cause of action for passing off:-

- A misrepresentation.

- Made by a trader in course of trade,

- To prospective customers of his or ultimate customers of goods or services supplied by him,

- Which is calculated to injure the business or goodwill of another trader (in the sense that there is a reasonable forceably consequence) and

- Which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in quia timet action) will probally do so.

29. The general principle of passing off has been discussed in the

case of Lakshmi V. Patel vs. Chetan Bhai 2002(24) PTC 1 which

stated as follows:-

"Para 8. It is common in the trade and business for a trader or a businessman to adopt a name and/or mark under which he would carryon his trade or business. According to Kerly (Law of Trade Marks and Trade Names/ Twelfth Edition/ para 16.49)/ the name under which a business trades will almost always be a trade mark (or if the business provides services/ a service mark/ or both). Independently of questions of trade or service mark, however, the name of a business (a trading business or any other) will normally have attached to it a goodwill that the courts will protect. An action for passing-off will then lie wherever the defendant company's name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings; the court will have regard to the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the date of the proceedings. Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently."

30. In SALMOND & HEUSTON IN LAW OF TORTS

(TWENTIETH EDITION, AT P.395) this form of injury is called as

„injurious falsehood‟ and observed the same having been „awkwardly

termed‟ as „passing off‟ and state:-

"The legal and economic basis of this tort is to provide protection for the right of property which exists not in a particular name, mark or style but in an established business, commercial or professional reputation or goodwill. So to sell merchandise or carry on business under such a name, mark, description, or otherwise in such a manner as to mislead the public into believing that the merchandise of business is that of another person is a wrong actionable at the suit of that other person. This form of injury is commonly, though awkwardly, termed that of passing off one‟s goods or business as the goods or business of another and is that most important example of the wrong of injurious falsehood. The gist of the conception of passing off is that the goods are in effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The law on the this matter is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders."

Protection under the doctrine of dilution and unfair competition

31. According to the doctrine of dilution, even if a person uses

another‟s well-known trademark or trademark similar thereto for goods

or services that are not similar to those provided by such other person,

although it does not cause confusion among consumers as to the source

of goods or services, it may cause damage to the well-known trademark

by reducing or diluting the trademark‟s power to indicate the source.

32. Since traditional trademark law is designed to protect

trademarks for the purpose of preventing confusion, many countries

provide for protection of well-known trademarks under the doctrine of

dilution in unfair competition prevention law. This is because that

where a person uses another person‟s well-known trademark or

trademark similar thereto for the purpose of diluting the trademark, such

use does not cause confusion among consumers but takes advantage of

the goodwill of the well-known trademark, it constitutes an act of unfair

competition.

33. In the case of Sunder Parmanand Lalwani and Ors. Vs.

Caltex (India) Ltd., AIR 1969 Bombay 24 at Page 36 Para 49 it is

held as under:

"49. In this case, the goods are totally different. There is no trade connection between them There is no connection in the course of trade nor any common trade channels. There are factors against holding that there would be any danger of deception or confusion. But we must consider the factors which tend to show that there is a likelihood of creating deception or confusion. The opponents have been using their mark on a very large scale since 1937. Their sales in 1956 exceeded Rs. 30 crores. Their publicity is wide spread and large. In 1956 they spent over a million rupees on advertisements. The goods in respect of which they use the trade mark "Caltex" are mainly petroleum, kerosene and lubricants like greases and oils etc. The goods in respect of which the applicant seeks registration are mainly watches. The class of goods in respect of which the applicant seeks registration is wider than watches and watches can be both costly and cheap. It cannot go without notice that the goods in respect of which the applicant in fact used the mark before he applied for registration were very cheap watches. The goods of the opponents are used by persons all over India, in cities and in villages, in different walks of life, rich or poor, literate or illiterate. The goods of the applicant are different in nature. But they are watches. They can be cheap watches. The potential market for them is, therefore, similar to that of the existing market of the opponents, in the sense that the goods of both the parties are not special goods. They are goods which would be purchased by the common man.

xxxxx

On the facts of this case, we have no hesitation in holding that a large number of persons, if they see or hear about the mark "Caltex" in connection with watches, would be led to think that the watches were in some way

connected with the opponents, or they would at least wonder whether they were in any way connected with the opponents. Persons seeing the mark attached to watches, which is a new class of goods, would assume, or are most likely to assume, that they originated from the proprietor of the mark, namely, the opponents."

34. In the case of Daimler Benz Aktiegesellschaft and another

Vs. Hybo Hindustan, AIR 1994 Delhi 239 the court in Paras 14 and

15 has held as under :-

"14. There are marks which are different from other marks. There are names which are different from other names. There are names and marks which have become household words. "Benz" as name of a Car would be known to every family that has ever used a quality car. The name "Benz" as applied to a car, has a unique place in the world. There is hardly one who is conscious of existence of the cars/automobiles, who would not recognize the name "Benz" used in connection with cars. Nobody can plead in India, where "Mercedes Benz" cars are seen on roads, where "Mercedes" have collaborated with TATAs, where there are Mercedes Benz Tata trucks have been on roads in very large number, (known as Mercedes Benz Trucks, so long as the collaboration was there), who can plead that he is unaware of the word "Benz" as used with reference to car or trucks.

15. In my view, the Trade Mark law is not intended to protect a person who deliberately sets out to take the benefit of somebody else's reputation with reference to goods, especially so when the reputation extends world wide. By no stretch of imagination can it be said that use for any length of time of the name "Benz" should be not objected to.

35. In view of the well settled law, it is clear that the plaintiff has

established his case of passing off also. Therefore, the plaintiff‟s suit

for passing off is also decreed as the plaintiff has discharged its burden

to prove the case of passing off. As regards the relief of damages is

concerned, the plaintiff has prayed for the loss of profits of atleast

Rs.12,26,000 by filing of the affidavit.

36. In General Tire Vs. Firestone, (1975) 1 WLR 819, it was

observed that the general rule is that the measure of the damages is, as

far as possible, that sum of money, which will put the injured party in

the same position, as he would have been if he had not suffered the

wrong. Extent of loss suffered or, the advantage gained by the defendant

by his wrongful act at the cost of the plaintiffs.

37. In Amarnath Sehgal Vs. Union of India, 2005 (30) PTC

253 (Del) it was observed that compensatory damages may be paid

where the acts and commissions of the defendants violate the

established rights of the plaintiffs.

38. In Microsoft Corporation v. Kiran, 2007 (35) PTC 748

(Del) it has been held that „wilfully, intentionally and flagrantly

violating the copyrights and trademark‟ is deliberate and calculated

infringement.

39. In the case of Time Incorporated v. Lokesh Srivastava,

2005 (30) PTC 3 (Del), the Court has recognized third type of damages

as punitive damages apart from compensatory and nominal damages.

The court held that:

"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 activities..."" "This Court has no hesitation in saying that the time has come when the Courts dealing actions for infringement of trademark, copy rights, patents etc. should not only grant compensatory damages but award punitive damages also with a view to discourage and 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."

40. The evidence of the plaintiff has gone unrebutted which

includes loss of business, reputation and goodwill in the market. Since

the above claimed amount is based on the assessments by the plaintiff, I

am of the view that a sum of Rs.5 lac can be reasonably awarded to the

plaintiff as compensatory damages and a sum of Rs.5 lac as

punitive/exemplary damages as well as damages on account of loss of

reputation and damage to the goodwill.

41. The suit of the plaintiff is accordingly decreed in terms of

Para 22 of the plaint. The decree be drawn accordingly. In view of

prayer 22(d), the defendant is directed to destroy the goods/blocks, dyes,

stationery and packaging material or any other printed material bearing

the trade mark TATA for the purpose of destruction within a period of

four weeks from today. Decree be drawn accordingly.

MANMOHAN SINGH, J APRIL 06, 2009 nn