In what one hopes is a continuing trend, the Delhi High Court recently granted a sum of half a million Rupees as damages in a suit filed by Wuxe Zhang & another against Subhash Agarwal & another for infringement of trade mark. In this case, the Defendant, SUBHASH AGARWAL, had been the distributor of the Plaintiffs’ goods (mobile phones) and had been selling the Plaintiffs’ goods under the Plaintiffs’ trademark G’FIVE since 14th August 2009. The Plaintiffs had begun using this mark since 1st September 2008. The Defendants adopted the trademark X’FIVE which was considered to be deceptively similar to the Plaintiffs’ mark and filed an application for registration of the same. This was considered as an act on the part of the Defendants to ride on the good will of the Plaintiffs by adopting a deceptively similar mark.
The Delhi High Court had initially granted an ex-parte ad interim injunction against the Defendant in this case and later granted a permanent injunction restraining the Defendant from using the trademark X’ Five or any confusingly similar mark to the trademark G’Five. The Hon’ble Court also granted half a million Rupees in monetary compensation and damages in favour of the Plaintiff.
As regards the quantum of damages, the Hon’ble Court observed that the Plaintiff has sought damages in the sum of two million rupees but had led no evidence on the aspect of damages. “However, considering the fact that the Defendants have infringed the Plaintiffs’ mark and have passed off their products with a deceptively similar mark with that of the Plaintiff, and have chosen not to appear after filing their written statements, the Court is inclined to award damages, as the Defendant cannot be permitted to enjoy the benefit of evasion of Court proceedings. The rationale for award of damages in such like cases is that-while Defendants who appear in court may be burdened with damages, those Defendants who chose to stay away from the Court, should not escape such damages being awarded by the Court, as their actions have injured the Plaintiff and have subjected the Plaintiff to avoidable expenses, litigation and harassment. Every endeavour should be made, for a larger public purpose, to discourage such parties from indulging in acts of deception and infringement.”