JUDGMENT Sanjay Kishan Kaul, J.
1. The plaintiff, a partnership firm, has filed the suit for perpetual injunction for infringement of copyright, trademark, passing off, damages and rendition of accounts against the defendants.
2. The plaintiff has sued through Mr. Amit Gupta, partner of the plaintiff, who has filed affidavit by way of evidence. The defendants did not appear despite service and thus were proceeded ex parte.
3. The plaintiff is stated to have created the original artistic work titled THE HEELS in the year 1980 and is the owner of the copyright as per the Registration No. A 30901/80. A certified copy of the registration has been filed on record which is ExP-3.
4. The plaintiff is also the proprietor of the trade mark THE HEELS (device) and the applications filed by the plaintiff are stated to be pending. The plaintiff is dealing with all kinds of footwear, bags, belts and other leather goods with the trademark and artistic work THE HEELS since 1980 and is stated to enjoy an enviable reputation. The device is stated to have become distinctive of the plaintiff. The sales figures of the plaintiff show for the financial year 2003-04 sale of over Rs2.62 crore and the plaintiff has been indulging in various promotional activities in furtherance of the better recognition of the trademark and the device.
5. The defendants are stated to have opened a shop with the name and trading style HEELS with the logo identical to that of the plaintiff. The bill of the defendants to substantiate the same has been proved as Ex P17.
6. In view of the aforesaid and the material on record, it is apparent that the defendants had adopted the HEELS with logo as part of their trading style and trademark and to deceive the public into believing that the product originates from the plaintiff and to cash on the goodwill of the plaintiff.
7. The defendants are also infringing the rights of the plaintiff under the Copyright Act. To give an illustration of this, the plaintiff has proved the carry bag of the plaintiff as ExP-18 and of the defendants as ExP-19. The Page 1561 defendants are thus seeking to pass off its goods as that of the plaintiff.
8. The plaintiff had even sent legal notices to the defendant (ExP-24), but to no avail and this was followed up by even subsequent notices including the notice dated 14.02.2005 (ExP-26) which has been returned with a refusal report (ExP-28).
9. The plaintiff, in view of the aforesaid facts and circumstances, is entitled to a decree of permanent injunction in terms of prayer clause 21 (a) to (c) of the plaint.
10. The only other question arises on account of the claim made by the plaintiff for damages for a sum of Rs 21 lakhs. The defendants have chosen to stay away from the proceedings. As to what view the court should take in such a situation has been considered by this Court in Hero Honda Motors Ltd v. Shree Assuramji Scooters 2005 (125) DLT 504.
11. This court has taken a view that where a defendant deliberately stays away from the proceedings with the result that an enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium on the conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable.
12. No doubt it is not possible to give an exact figure of damages on the basis of actual loss, but certain token amounts on the basis of the sales of the plaintiff can certainly be made. The plaintiff is unnecessarily dragged into litigation and the defendants must bear consequences thereof. In fact in such a case both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff on such litigation. In view of the given sales figure of the plaintiff, I consider it appropriate to grant a decree of damages in favor of the plaintiff and against the defendants for a sum of Rs 3 lakh apart from costs of the suit.
13. A decree is passed in favor of the plaintiff and against the defendants jointly and severally in terms of prayer clause 21 (a) to (c) of the plaint and a further decree for damages is passed in the sum of Rs 3 lakh.
14. The plaintiff is also entitled to costs.
15. Decree sheet be drawn up accordingly.