9911796707
TMI Blog2005 (1) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants has to be condemned and contained. Therefore, this Court has no hesitation in holding that the plaintiff has succeeded in establishing on record that the defendants are infringing its trade name and copyrights in over design of its magazine ''TIME ASIA''. Punitive and exemplary damages - In the case in hand itself, it is not only the plaintiff, who has suffered on account of the infringement of its trade mark and Magazine design but a large number of readers of the defendants' Magazine 'TIME ASIA SANSKARAN' also have suffered by purchasing the defendants' Magazines under an impression that the same are from the reputed publishing house of the plaintiff company. This Court has no hesitation in saying that the time has come when the Courts dealing actions for infringement of trade marks, copy rights, patents etc. should not only grant compensatory damages but award punitive damages also with a view to discouraged dishearten law breakers who indulge in violations with impunity out of lust for money so that they realize that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons including 'TIME ASIA' which was introduced in July, 1946 for the residents of Asia. The details of the average paid circulation of 'TIME ASIA' have been given in para 14 of the plaint. The details of the registration in India of the trade mark 'TIME' and its cover design with red border device have been given in para 16 of the plaint. It has been pleaded that these registrations confer upon the plaintiff's exclusive right to use the said mark to the exclusion of all others. LIVING MEDIA is its distributor in India since 1994. The details of the circulation of this Magazine in India, its revenue and publicity expenses are given in Para 17 of the plaint. The plaintiff has alleged that the defendants started printing, publishing and distributing for sale ''TIME ASIA SANSKARAN'' by using the words ''now in Hindi also a News Magazine of International standards''. This press release indicating the launch of the Magazine from 18th July, 1999 uses the word 'TIME' in an identical type script and font style as is used by the plaintiff to represent the mark on its Magazines. The defendants invited advertisements also for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises, the plaintiff claims a decree of permanent injunction restraining the defendants, their officers, servants, agents, representatives and related companies from launching, publishing, issuing and advertising their Magazine under the trade mark 'TIME ASIA SANSKARAN' and from using the component 'TIME ASIA' or 'TIME' together with or separately in conjunction with any prefix or suffix or from using any other trade mark which is deceptively similar to the plaintiff's trade mark 'TIME' and from using the distinctive reborder, design, so as to infringe the plaintiff's registered trade mark No. 100539, 173307 and 407004. An order for delivery up of all goods bearing the impugned mark including letterheads, literature, magazines, negatives, dies, blocks, labels, promotional material, stationery articles or any other infringing material is also prayed. A decree of damages in the sum of Rs. 12.5 lacs on account of actual damages suffered by the plaintiff because of the infringing activities of the defendants including the loss of sales and advertisement revenue or an order of rendition of accounts of the profits illegally earned by the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sements for its Magazine and have higher circulation. This attempt on the part of the defendants has to be condemned and contained. Therefore, this Court has no hesitation in holding that the plaintiff has succeeded in establishing on record that the defendants are infringing its trade name and copyrights in over design of its magazine ''TIME ASIA''. The plaintiff has claimed a decree of Rs. 12.5 lacs on account of damages suffered by the plaintiff or an order of rendition of accounts of the profits illegally earned by the defendants by use of the impugned trade mark. In view of the fact that the defendants have not chosen to turn up and face these proceedings, this Court is of the considered view that an order of rendition of accounts is fully warranted and called for. Damages in the sum of Rs. 12.5 lacs as claimed cannot be awarded on account of the fact that the plaintiff has not succeeded in proving on record as to how and on what basis these damages have been calculated. Damages of Rs. 5 lacs are claimed on account of loss of reputation of the plaintiff. These can be awarded inasmuch as the reaers who might have read the defendants' TIME ASIA SANSKARAN, mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice by providing a civil alternative to criminal prosecution of minor crimes. It was further observed that the award of punitive damages serves the additional purpose of limiting the defendant's ability to profit from its fraud by escaping detection and prosecution. If a tortfeasor is caught only half the time he commits torts, then when he is caught he should be punished twice as heavily in order to make up for the times he gets away This Court feels that this approach is necessitated further for the reason that it is very difficult for a plaintiff to give proof of actual damages suffered by him as the defendants who indulge in such activities never maintain proper accounts of their transactions since they know that the same are objectionable and unlawful. In the present case, the claim of punitive damages is of Rs. 5 lacs only which can be safely awarded. Had it been higher even, this court would not have hesitated in awarding the same. This Court is of the view that the punitive damages should be really punitive and not flee bite and quantum thereof should depend upon the flagrancy of infringement. 2. Accordingly, an ex-prate decree of permanent injunction is passed in favor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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