Intel Corporation vs Mr. Theva Murugan & Ors
2012 Latest Caselaw 6855 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CS(OS) 1561/2009 & I.A.No.7966/2011

                               Date of Decision: 30th November, 2012
IN THE MATTER OF
INTEL CORPORATION                                         ..... Plaintiff
                               Through : Mr. Manav Kumar, Advocate

                   versus

MR. THEVA MURUGAN & ORS                                      ..... Defendants
                               Through : None.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The plaintiff has filed the present suit praying inter alia for grant of

permanent injunction restraining the defendants from infringing its

trademark, for passing off, delivery up, damages, etc.

2. The plaintiff is a company incorporated under the laws of the State

of Delaware, USA and is engaged in the business of developing advanced

integrated digital technology platform for the computing and

communication industries. The plaintiff is aggrieved by the use of a

deceptively similar mark as its trademark "INTEL" by the defendants in

their trade name "INTEL EXPRESS CARGO" and "INTEL IMPEX".

3. Counsel for the plaintiff submits that the defendants are engaged in

the business of providing services related to shipping and cargo handling,

import and export of goods and by using the word "INTEL" as a key part

of their trade name, they are infringing upon the plaintiff‟s trademark.

He states that the plaintiff has been using the mark "INTEL" as the

corporate name on its products ever since the year 1968, i.e., the year of

its incorporation and initially the use of the said mark had commenced in

the United States of America and subsequently, the same was extended

to other countries in the world. The plaintiff states that it has branch

offices in various parts of India, with a network of dealers and distributors

spread throughout the country. In the year 1969, the plaintiff had

adopted a distinctive style for representing the "INTEL" mark, popularly

known as the Intel „dropped-e‟ logo, which has been publicized widely.

The word, "INTEL" is written in such a manner that the alphabet "e" is not

in the same line as the other alphabets.

4. Counsel for the plaintiff states that the plaintiff has an estimated

2000 trademark registrations world-wide consisting of or incorporating

the word, "INTEL" inter alia in respect of computers, computing devices,

microporcessors and various parts thereof as well as in respect of

softwares to be used in computers and other computer related products

and services. It is submitted that the list of the plaintiff‟s trademark

registrations and pending applications for INTEL related marks have been

filed along with the list of documents. In India, the details of the

registrations of the trademark "INTEL" existing in favour of the plaintiff,

have been set out in para 15 of the plaint and the said trademark covers

Classes 2,3,4,5,21,24,25,26,27,31 and 33.

5. As regards the defendants, it is submitted that they are based in

Chennai. The defendant No.1 is stated to be the proprietor of the

defendants No.2 & 3 firms and they are engaged in the business of

providing services related to shipping and cargo handling and import and

export of goods. It is claimed that in the year 2008, the plaintiff came

to know of the fact that the defendants were using "INTEL" as a key part

of their trading names, "INTEL EXPESS CARGO" and "INTEL IMPEX".

Immediately thereupon, the plaintiff has sent a Cease and Desist notice to

the defendants on 5.11.2008 calling upon them not to use the said

trademark as a part of their trade name. However, the defendants

neither responded to the said letter, nor did they respond to the

subsequent reminders dated 21.11.2008 and July, 2009. The defendant

No.1 also rejected the plaintiff‟s offer for an amicable settlement during

discussions.

6. Learned counsel for the plaintiff submits that the adoption and use

of the mark "INTEL" by the defendants as a trademark and as part of

their trade name amounts to willful infringement of the plaintiff‟s

registrations for the mark "INTEL" in classes 35, 36, 37, 38, 39, 30, 41

and 42, within the meaning of Section 29 (4) and (5) of the Trademarks

Act, 1999. He states that despite the plaintiff calling upon the defendants

to Cease and Desist using the mark "INTEL", they are continuing to carry

on their business under the name and style of "INTEL EXPRESS CARGO"

and "INTEL IMPEX". The images of the defendants‟ infringing trade

names have been reproduced in para 19 of the plaint.

7. The defendants were duly served with summons in the present suit

on 29.11.2009, but they neither entered appearance, nor did they file any

written statement to point out as to why the word, "INTEL" has been used

by them as their trade name. Finally, vide order dated 26.5.2011, the

defendants were proceeded against ex parte. Thereafter, the plaintiff was

directed to file an affidavit by way of evidence. An affidavit by way of

evidence has been filed on behalf of the plaintiff by Mr. Rahul Sethi, who

has also signed, verified and instituted the present suit on its behalf. The

affidavit of the said witness has been marked as Ex.PW1/X. The said

witness has a power of attorney dated 11.2.2008 executed in his favour,

a copy whereof is placed on record and marked as Ex.PW1/1. Copies of

the trademark certificates in favour of the plaintiff have been collectively

marked as Ex.PW1/5. The images of the defendants/ infringing trade

names have been marked as Ex.PW-1/6 and the business card of the

defendant No.1 is marked as Ex.PW1/7. Copies of the notices issued by

the plaintiff to the defendants have been marked as Ex.PW1/8, Ex.PW1/9

and Ex.PW1/10. All the aforesaid documents were exhibited before the

Joint Registrar on 18.1.2012.

8. There is merit in the submissions of the learned counsel for the

plaintiff that the mark "INTEL" that belongs to the plaintiff, is well-known

and well-established world over and the use of the said mark by the

defendants is a deliberate attempt on their part to show some

connection/association with the plaintiff and take advantage of the

plaintiff‟s goodwill and reputation in the market. The aforesaid

submission made by the counsel for the plaintiff is reinforced by the fact

that though the defendants are not connected in any way with the

manufacture, sale or dealership with computers, they have drawn a

picture of a computer on their visiting card.

9. In view of the submissions made herein above, this Court is of the

opinion that the defendants have illegally adopted the plaintiff‟s

trademark "INTEL" and, therefore, the plaintiff is entitled to a decree of

permanent injunction and delivery up in terms of the prayer clause 29 (i),

(ii) and (iii).

10. Counsel for the plaintiff states that simply because the defendants

have failed to enter appearance and contest the present suit, would not

disentitle the plaintiff from seeking the relief of claiming damages against

them for the unlawful use of the trademark "INTEL". In support of the

aforesaid submission, he relies upon the following decisions:

(i) Time Incorporated vs. Lokesh Srivastava & Anr., 2005 (30) PTC 3 (Delhi);

       (ii)     Hero Honda Motors Ltd. vs. Shree                Assuramji
                Scooters, 2006 (32) PTC 117 (Delhi);

       (iii)    Intel Corporation vs. Dinakaran Nair & Ors., 2006
                (33) PTC 345 (Delhi);

       (iv)     Procter & Gamble Company vs. Joy Creators & Ors.,
                2011 (45) PTC 54 (Delhi).

11. In the case of Time Incorporated (Supra), it was observed that

punitive damages ought to be awarded in appropriate cases on the

foundation of the philosophy of corrective justice and, imposition of

damages gives a signal to the wrong doers that law does not take a

breach merely as a matter between rival parties, but feels concerned

about those also who are not a party to the lis but suffer on account of

the breach. Thus, the court had opined in the aforesaid case that in

dealing with actions for infringement of trademarks, copyrights, patents,

etc., compensatory damages should be awarded to discourage and

dishearten the law breakers.

12. Relying on the judgment in the case of Hero Honda Motors

Ltd. (supra), the Court in the case of Intel Corporation (supra), had

taken a view that damages ought to have been awarded against the

defendants who had chosen to stay away from the proceedings of the

court as they should not be permitted to enjoy the benefits of evasion of

court proceedings. Similarly, in the case of Procter & Gamble Company

(supra), a Coordinate Bench of this Court had taken note of the fact that

a lot of energy and resources are spent in litigation against those who

infringe the trademark and copyright of others and try to encroach upon

their goodwill and reputation by passing off their goods and/or services as

those of well-known brands, and failing to impose punitive damages in

such cases, would encourage unscrupulous persons who encroach on the

goodwill and reputation of the original owners of the trademark/copyright.

13. In the present case, the plaintiff has sought damages to the tune of

`20.00 lacs against the defendants. Learned counsel for the plaintiff

states that during the pendency of the present proceedings, an ad interim

ex parte order was passed in favour of the plaintiff on 25.8.2009,

whereunder the defendants were restrained from using the trademark

"INTEL" in relation to their business in any manner, whatsoever. He

submits that despite the fact that the plaintiff had made necessary

compliances of the provisions of Order XXXIX Rule 3 CPC and duly

intimated the defendants about passing of the said order, they continued

their business in the name of "INTEL EXPRESS CARGO" and "INTEL

IMPEX". As a result, the plaintiff was compelled to file an application

under Order XXXIX Rule 2A CPC, registered as I.A.No.7966/2011, seeking

prosecution of the defendants for willful disobedience of the order passed

by this Court. Notice was issued on the aforesaid application on

26.5.2011. However, the process server had submitted a report of

refusal, which was duly taken note of in the order dated 15.10.2012

passed by the Joint Registrar.

14. Counsel for the plaintiff submits that in view of the impunity shown

by the defendants by deliberately staying away from the proceedings of

the court, evading the court process and at the same time, continuing to

use the plaintiff‟s registered trademark, "INTEL", the plaintiff ought to be

awarded punitive damages against them.

15. The Court has considered the submissions made by the counsel for

the plaintiff hereinabove in the light of the decisions relied upon by him

and is of the opinion that there is sufficient justification for awarding

punitive damages in favour of the plaintiff and against the defendants.

The plaintiff is entitled to the said relief on account of the loss suffered by

it due to the wrongful use of its registered trademark, "INTEL" by the

defendants. Awarding punitive damages shall also act as a deterrent for

wrong doers like the defendants, who first indulge in unlawful activities

and then deliberately stay away from the court process by evading

appearance. The message to such wrong doers ought to go in loud and

clear terms that absenting themselves from court proceedings and at the

same time continuing to encroach upon the goodwill and reputation of

others would not be taken light and, nor would such wrong doers be

permitted to reap the benefit of evasion of court proceedings.

16. In the aforesaid facts and circumstances, the Court is inclined to

burden the defendants with punitive damages which are quantified at

`5.00 lacs. A decree is thus passed in favour of the plaintiff and against

the defendants in terms of the prayer clause 29 (i), (ii) and (iii) and it is

further held that the plaintiff is entitled to a decree of damages for a sum

of `5.00 lacs against the defendants, apart from costs in the suit. Decree

sheet be drawn up accordingly.

17. The suit is disposed of, along with the pending application.

(HIMA KOHLI) JUDGE NOVEMBER 30, 2012 sk/mk