JUDGMENT Sanjay Kishan Kaul, J.
1. The plaintiff has filed the suit for permanent injunction, infringement of trademark, copyright, passing off, rendition of accounts against the defendants in respect of its trademark NATARAJ and APSARA and the device of NATARAJ and APSARA.
2. The plaintiff claims to be a well established manufacturer of pencils and other items of stationery, carrying on business since 1957. The plaintiff is a registered proprietor of various trademarks NATARAJ and devices of NATARAJ, the details of which have been set out in Para 3 of the plaint. The said registration is in respect of pencils, sharpeners, pens, erasers, pins, clips, stationery and artistic material. The plaintiff is also the registered proprietor of the trademark APSARA in respect of stationery goods and other items as set out in Para 4 of the plaint.
3. The cartons of NATARAJ with the device of NATARAJ have also been registered under the Copyright Act, 1957.
4. The plaintiff has set out the sales figures for the year 2000-2001 as 95 crores and the expenses on advertisement alone are stated to be in the range of over Rs 3 crores. In view thereof, it has been stated that both the trademarks NATARAJ and APSARA have acquired vast goodwill and reputation in the stationery business.
5. In the last week of June, 2003 it came to the notice of the plaintiff that the defendants are using the trademark and devices of NATARAJ and APSARA in respect of hard board slate and thus the plaintiff claims that its trademark was being violated. The plaintiff's case is that goods of both the parties are sold at the same counter being really in the nature of stationery items and purchased by school going children. The attempt of the defendants is thus to ride piggy back on the reputation of the plaintiff.
6. The defendants were not permitted leave to place the written statement on record by the order dated 27.09.2004 nor has any application been made thereafter by the defendants in this behalf. The plaintiff was granted leave to file affidavit of evidence and the affidavit of Mr. P.M. Thanawala has been filed as ExPX.
7. The suit was instituted by Sh. P.N. Thanawala who has proved the power of attorney in his favor as ExP1. The registration certificates of the trademark and device NATARAJ have been proved as ExP2 to P6 and the registration certificate of the trademark and device APSARA as ExP7 to P9. The plaintiff has also proved the copyright certificate of the packaging of the NATARAJ as ExP12. Mr. Thanawala has more or less stated what allegations have been set out in the plaint.
8. The facts on record as also the evidence show that the plaintiff as a registered trademark in both NATARAJ and APSARA and the nature of goods sold by both the plaintiff and the defendants have similarity inasmuch as the customer is broadly the same. Such stationery items are purchased largely by children who would assume that the product of the defendants emanates from the plaintiff in view of the trademark. A perusal of the relevant exhibits would show that not only is the trademark being adopted by defendants but even the devices in both the cases is almost identical. The dishonest intention of the defendants is thus apparent as the defendants want to convey an impression that its products emanate from the plaintiff.
9. It may be noticed that the defendants are only seeking to make a difference by spelling NATARAJ as NATRAJ while the plaintiff spells it as NATARAJ which would in any case not make any difference.
10. In view of the aforesaid facts, the plaintiff is entitled to a decree of permanent injunction restraining defendants or their agents from selling the hard board slate or any other similar item offending the trademark NATARAJ and APSARA similar and identical to that of the plaintiff including in respect of the devices.
11. The last aspect to be considered is the question of damages. This court has already taken a view in Hero Honda Motors Ltd v. Shree Assuramji Scooters that even if the defendant stays away from the judicial proceedings, the plaintiff cannot be deprived of the claim for damages. This is so since the result of the defendant staying away form the judicial proceedings is that any enquiry into the accounts of the defendant for determination of damages cannot take place and a view to the contrary 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 parties who choose to stay away from the court after having infringed the right of the plaintiff would go scoot free. This position cannot be acceptable. 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 sales of the plaintiff can certainly be assessed. The plaintiff has unnecessarily been dragged into litigation and the defendant must bear the consequences thereof. I am of the considered view that taking into consideration the facts and circumstances of the case, the plaintiff is also entitled for a decree of damages against the defendants for a sum of Rs. one lakh apart from the costs of the suit. Decree sheet be drawn up accordingly.
12. It is observed from the perusal of the plaint that the suit is deficiently stamped for purposes of court fees in view of the judgment of this Court in CS(OS) No. 1165/2001 titled Pfizer Products, Inc. v. B.L. and Co. and Ors. decided on 03.10.2005. Learned Counsel for the plaintiff, as prayed for, is granted fifteen days time to make up the deficiency of court fees and the decree sheet be drawn up on the deficient court fees being paid.
IA No. 8087/2003 IA No. 11776/2003 The applications do not survive for consideration and are disposed of.