Sanjay Kishan Kaul, J. (Oral)

(1) The plaintiff has filed a suit for permanent injunction restraining infringement of trademark, copyright, passing off and unfair competition, rendition of accounts of profits, delivery up, etc. against the defendants.

(2) The plaintiff is the registered proprietor of the trademarks JOHN PLAYERS in class 28 under TM no.1131260 as of 5 September 2002 by TM Certificate dated 14 April 2005 and JOHN PLAYER in class 3 under TM no. 1151456 as of 18 November 2002 by TM certificate dated 24 March 2005 under the Trademarks Act, 1999. It is stated that Section 28(1) of the Trade Marks Act, 1999 gives the registered proprietor of the trademark the exclusive right to use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark. The plaintiff claims to have the exclusive right to use its trademark and use by any other person of the said mark or any other mark deceptively similar thereto would amount to violation of the plaintiffs legal and statutory rights. It is thus stated that the defendants by virtue of having illegally used the said registered trademarks of the plaintiffs and/or by using any other mark deceptively similar thereto would be and are liable for infringement thereof apart from passing off.

(3) The present suit concerns the plaintiffs statutory legal and common law proprietory rights over the trademark JOHN PLAYERS and the common law rights pertaining to artistic work (label) in relation to JOHN PLAYERS and violation thereof by the defendants.

(4) The trademark JOHN PLAYERS has been adopted by the plaintiff in the year 2002. JOHN PLAYERS is the complete range of contemporary mens wear from ITC Limited and has a collection of shirts, trousers, T-shirts and denims, for the festive season. It is claimed that the tempting array of shirts come in the most stylish structures, checks and stripes in a dazzling spectrum of colours. Structures spell sheer elegance with Classic Twills collection in 100 per cent cotton. Patterns spell vibrancy in nature line collection inspired by the refreshing colours of nature. John Players new seasons range, priced between Rs 400 and Rs 900, is available at all leading retail stores across the country. The first of sales of goods under the trademark JOHN PLAYERS is stated to have been made on 23.12.2003 and since then the plaintiff has sold goods under the trademark JOHN PLAYERS worth of more than Rs 28 crores approximately. It is submitted that right from the time it was launched, JOHN PLAYERS has successfully marketed fashionable premium relaxed apparels.

(5) Besides the common law rights existing in favour of the plaintiff, the trademark JOHN PLAYER and JOHN PLAYERS are registered in India. The plaintiff is also registered proprietor of the trademark logo ITC under number 672317 B as of 7/7/1995.

(6) It is stated that the products of the plaintiff under the trademark JOHN PLAYERS are being sold with a label/packaging in a distinctive manner. The plaintiff is also registered proprietor of the artistic work (logo) ITC under Copyright Act bearing No. A-5630/70 as of 8/6/1970. The plaintiff thus claims to be the owner of artistic work in ITC Logo/label/packaging filed herein, within the meaning of Section 2(c) of the Copyright Act. The copyright entitles the plaintiff to the exclusive use of the features of the packaging/label. It is also submitted that the said copyright entitles the plaintiff to reproduce the said label/packaging in any material form, including get-up, colour scheme, layout and arrangement of features to the exclusion of others.

(7) It is alleged that the last week of September, 2006, the plaintiffs attention was drawn to sale of counterfeit JOHN PLAYERS shirts, labels and other clothing at premises owned by defendants. The plaintiff through its representative Mr. Rakesh Chhabra purchased infringing goods from the defendants bearing the mark JOHN PLAYERS and was astonished to see its mark being misused by the defendants who have used an identical mark in identical manner on identical goods as that of the plaintiff.

(8) The differences in the original products of the plaintiff bearing the mark JOHN PLAYERS and that of the counterfeit products of the defendants are set out as under:

(9) The plaintiff claims that the defendants conduct reeks of dishonesty and is clearly unjustifiable and calls for suitable deterrent action. The defendants said activities are also stated to amount to unfair competition since there is a definite status attached to the trademark JOHN PLAYERS that is enjoyed by the original products of the plaintiff. It is pleaded that a fundamental principle of trademark law is that trading must not only be honest but must not, even unintentionally, be unfair. The defendant, which has adopted deliberately unfair means, cannot be permitted to appropriate to itself the benefits and profits legitimately accruing to the plaintiffs by virtue of the reputation of the goods bearing the plaintiffs trademarks and copyright. The defendants aforesaid activities have clearly caused damage and injury to the plaintiffs business and reputation which is unquantifiable and irreparable.

(10) The above said suit along with two miscellaneous applications was listed before the Honble Court on 19.10.2006 when this Honble Court passed the ex parte ad interim injunction order. As per the prayer, the Honble Court also appointed three Local Commissioners to visit the premises of the defendants and who have already complied the Honble Courts order dated 19.10.2006. Defendant no.3 in the matter is stated to have already filed an undertaking in view of the order passed on 05.02.2007. Defendant nos 1,2 and 4 have already been proceeded ex parte vide order dated 01.12.2006.

(11) The plaintiff has filed the affidavit of evidence of Mr. Rajeev Ohri who had signed and verified the plaint and instituted the suit. The affidavit more or less affirms to what is set out in the plaint. The plaintiff has proved the copy of the legal proceedings certificate in favour of the plaintiff bearing no. 1151456 as ExP-1 and the photographs of the product of the plaintiff as ExP-2. The affidavit of Sh. Rakesh Chhabra who purchased the infringing material has been proved as Ex P-3, photographs of the defendants products have been collectively proved as ExP4 while the stickers and labels used by defendants have been collectively proved ExP-5.

(12) Learned counsel for the plaintiff states that since defendant no.3 has already filed an undertaking in pursuance to the order dated 05.02.2007, the said undertaking be accepted and no further decree is prayed for against defendant no.3 Ordered accordingly.

(13) Insofar as defendant nos 1, 2 and 4 are concerned, the case of the plaintiff is unrepresented by the said defendants who have failed to enter appearance despite service and were proceeded ex parte on 01.12.2006.

(14) Learned counsel for the plaintiff states that apart from the relief of injunction, the plaintiff is also entitled to the relief of damages.

(15) In such a case a party like the said defendants who fail to enter appearance cannot be put on a better footing than a party who has appeared before the Court. To advance his arguments, learned counsel has relied upon the judgment of this Court in Asian Paints (India) Ltd v. Balaji Paints and Chemicals and Ors; 2006(33) PTC 683 (Del) and Microsoft Corporation v. Mr. Deepak Raval and Anr; 2006 (33) PTC 11 (Del). The principle expounded in these judgments is that apart from compensatory damages even punitive damages ought to be awarded to discourage and dishearten law breakers who indulge in violation with impunity and that such damages ought to be awarded against defendants who choose to stay away from proceedings of the Court and they should not be permitted to enjoy the benefits of evasion of court proceedings. The rationale set out for the same is that while defendants who appeared in court may be burdened with damages while defendants who chose to stay away from Court would escape such damages. Once the action of the defendants results in affecting the reputation of the plaintiff, every endeavour should be made for a larger public purpose to discourage such parties from indulging in acts of deception.

(16) The judgments referred to by learned counsel for the plaintiff and considered in these judgments would show that that in number of such cases, an amount of Rs 3 lakh has been quantified as damages. I see no reason to take a different view.

(17) In view of the aforesaid, a decree is passed in favour of the plaintiff and against defendant nos 1,2 and 4 in terms of prayer clause (i) to (iv) of para 47 of the plaint and against the claim made in para (v) of Para 46 of the plaint, an amount of Rs.3 lakh is quantified as damages to be payable to the plaintiff by the said defendants no.1, 2 and 4. The infringing material seized by the local commissioner be also delivered to the plaintiff for destruction in terms of prayer clause (vi) of the plaint.

(18) Plaintiff shall also be entitled to costs against the said defendants.

(19) A decree sheet be drawn up accordingly.