Cargil Foods India Ltd. vs Mr. M.P. Mandot and Another

Rajiv Sahai Endlaw, J.—The present suit was instituted with respect to the trademark ''SHUBH''. registered in respect of Soyabean Oil (edible). The defendant No. 1 who is proprietor of the defendant No. 2 was averred to have adopted the trademark ''SHUDH''. also in respect of Soyabean Oil. The suit is filed for the reliefs of permanent injunction, damages, accounts and delivery.

Vide ex parte order dated 27th July, 2006, the defendants were restrained from manufacturing, packing, selling, offering for sale, advertising, directly or indirectly dealing in soyabean oil and any other mark which is identical with or deceptively similar to the plaintiff.s trademark ''SHUBH''. On application of the plaintiff, vide the same order, the Court Commissioner was also appointed to visit the premises of the defendants. The Court Commissioner filed the report of infringing packaging material found in the premises of the defendants.

The defendants appeared before this Court through counsel and on the very first date stated that the matter is likely to be compromised. On 30th March, 2007, the counsel for the defendants stated that the defendants had stopped trading under the impugned trademark and had no intention to in future deal under the impugned trademark and had no objection if the decree for permanent injunction was passed against the defendants. However, request was made for the plaintiff to give up the claim for damages. The matter was again adjourned from time to time. On 13th November, 2007, the counsel for the plaintiff informed that the plaintiff was not willing to give up the claim for damages against the defendants. In the circumstances, the defendants were directed to file their written statement and the ex parte order was made absolute during the pendency of the suit.

The defendants failed to file any written statement and thereafter also stopped appearing before the Court and were on 28th April, 2008 proceeded against ex parte and the plaintiff was directed to file ex parte evidence. The plaintiff has filed the affidavit by way of examination in chief of its Head Marketing and the said affidavit has been tendered in evidence.

From the aforesaid, it would appear that there is no need to discuss, as far as the relief of permanent injunction is concerned inasmuch as that has been conceded by the defendants. Even otherwise, on the material on record, I find the plaintiff entitled to the said relief. The only other question which remains for adjudication is the claim of the plaintiff for the reliefs of delivery and damages.

Notwithstanding the trial having been confined to damages only as aforesaid, the witness of the plaintiff has, so to say, led no evidence whatsoever thereon except to make a bare statement that �the plaintiff believes that the loss and damage to its goodwill and reputation on account of...infringement...is estimated to be Rs. 20 lacs". The plaintiff ought to have led evidence of the period for which the defendants infringed the trademark, the price at which the plaintiff was selling the goods and the price at which the defendants were selling the goods under the infringing trademark, effect which the sale by the defendants had on the sale by the plaintiffs and as to by what quantum did sales increase if at all of the plaintiff, upon the defendants being restrained. Only if the evidence to said effect had been led, could this Court come to the conclusion as to the loss suffered by the plaintiff and could court have computed the damages.

Be that as it may, the loss or damage to the plaintiff is implicit upon admission of infringement. The defendants by remaining absent from trial cannot avoid the liability for damages. However, in the absence of any evidence from the plaintiff, the Court relying upon Time Incorporated v. Lokesh Srivastava 2005 (30) PTC 3 and Hero Honda Motors Ltd. v. Shree Assuramji Scooters 2006 (32) PTC 117 is left with no option but to award nominal damages in the sum of Rs. 3 lacs to the plaintiff. While arriving at the said figure, I have taken into note the volume of the infringing packaging material found by the Court Commissioner at the premises of the defendants.

The suit of the plaintiff is thus decreed in terms of prayer paragraph 17(i) to (iii) of the plaint. A decree for damages in the sum of Rs. 3 lacs is also awarded in favour of the plaintiff and against the defendants. The Court Commissioner had handed over the seized goods to the defendant No. 1. The defendant No. 1, upon being approached by the plaintiff is directed to deliver the same to the plaintiff who will be at liberty to destroy the same without any liability to the defendants. The plaintiff shall also be entitled to costs of the suit. The counsels fee is assessed at Rs. 50, 000/-.

The decree sheet be drawn up.