One of the frequently adopted tactics employed by the defendant is non-appearance or evasion of Court proceedings. Retention of account is one of the major grounds for relief and the most celebrated way of avoiding the same is through non-appearance. But, presently the Judiciary has formulated principles to place check on these tactics. The Delhi High Court in the case of Asian Paints (India) Ltd. V Balaji Paints & Chemicals & Ors 2006 (33) PTC 683 (Del), reflects the current position as it has taken a strong view, that defendants who choose to stay away from proceedings of the court purely to escape damages should be burdened with the punitive damages, because on top of the impugned issue defendant’s action impinges on the reputation of the plaintiff. Every endeavour should be made to discourage parties from indulging in such acts for a larger public purpose.
Asian Paints (India) Ltd., claims to be a market leader in the business of manufacturing and marketing of paints, varnishes, enamels and colour concentrates etc and they undertake marketing of its products under distinctive brand names in containers and packaging bearing a distinctive trade dress and get up. The trade dress also encompasses the device of their mascot "GATTU", the image of a mischievous little boy with a lopsided grin. Asian Paints also claims to be the registered proprietor of trademark APCOLITE, ASIAN PAINTS (DEVICE) UTSAV, TRACTOR and TRACTOR (DEVICE) and device of GATTU. Further he also claims to be original artistic work holder as per the Copyright Act in respect of the colour scheme, lay out and get up of the containers and packing materials.
The allegation leveled against Balaji Paints & Chemicals & Others/Defendants were found marketing synthetic enamel and look alike products by adopting and using the trademarks of Asian Paints (India) Ltd in the same manner and in identical packaging material giving an impression as if the products is that of the Asian Paints (India) Ltd.
Asian Paints (India) Ltd contented that apart from the relief claimed, it is also entitled to damages. The Defendant No. 2 (a retailer) and Defendant No.3 (a shop keeper) entered appearance and agreed to suffer a decree, but Balaji Paints & Chemicals decided to remain ex parte.
The Court held that the adoption of the trademarks by Balaji Paints & Chemicals and others was with the objective of deceiving the public into believing that the source of goods was common and that primary liability rests on Balaji Paints & Chemicals .
Reinforced with the principles formulated in the recent judgment of Hero Honda Motors Ltd. V Shree Assuramji Scooters, 2006 (32) PTC 117 (Del.), the Court quantified and awarded the damages of Rs. Three Lakhs for choosing to stay away from the proceedings of the Court despite service.
The landmark case of Time Incorporated V Lokesh Srivastava & Anr 2005 (30) PTC 3 (Del) was also referred to substantiate the award of punitive damages apart from compensatory damages. The point of view taken was that it has now become imperative to discourage and dishearten lawbreakers who indulge in violation with impunity. The plaintiff instead of putting its energy for expansion of its business and sale of products has to use its resources to be spread over a number of litigations to bring to book the offending traders in the market. A further aspect that the object of awarding punitive damages over and above compensatory damages is to relieve pressure on the over-loaded system of criminal justice by providing civil alternative to criminal prosecution of minor crimes was also found materially relevant.
It has become evident that the Courts in India has formulated the concept of punitive damages to place effective check the evasive tactics adopted by the defendants. The concept of punitive damages were not in the realm of IP jurisprudence, but the recent trend shows that the courts are less reluctant to use the same to check up the growing menace of infringements.
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