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September 8, 2020

Compensatory Damages Cannot Be Granted In Absence Of filing Of Statement Of Account: Reaffirmed

Author: Krithika Muthuraman

In the matter of Adidas India Marketing Pvt. Ltd vs Kumar Garments [TM No. 23/2018], the Delhi District Court, videOrder dated August 27, 2020, granted an ex-parte injunction and imposed punitive damages amounting to Rs. 5,00,000/-, after finding the Defendant to be infringing the Plaintiff’s “ADIDAS” marks.

The Plaintiff claims to be the registered proprietor and user of the “ADIDAS” marks (word and logo) in India, in relation to, inter alia, sportswear. As claimed by the Plaintiff, in January 2018, it became aware of the Defendant and its wholesale business of stocking, distributing and selling of counterfeit apparels bearing the falsified “ADIDAS” marks (word and/or logo), and other marks deceptively similar to the Plaintiff’s “ADIDAS” marks.

The instant suit was filed by the Plaintiff alleging, inter alia, passing off and infringement of its marks “ADIDAS” (word and logo). The Plaintiff placed on record several documents in support of its claims, including photographs of the counterfeited product(s), and sought a permanent injunction, rendition of accounts as well as damages against the Defendant.

During the course of trial, on two separate occasions, Orders were passed imposing costs amounting to Rs. 20,000/- on the Defendant. The Defendant did not comply with these Orders. Following the non-compliance, the suit proceeded ex-parte.

After due consideration of the evidence adduced by the Plaintiff, the Court imposed punitive damages amounting to Rs. 5,00,000/-, and also granted an injunction against the Defendant. Placing reliance on the decisions in Times Incorporated Vs. Lokesh Srivasta & Anr. [2005 (30) PTC 3] and Microsoft Corporation Vs. Rajendera Pawar & Anr., [2008 (36) PTC 697], the Court held  “…though the damages as claimed by the plaintiff cannot be granted in absence of any substantive evidence to the contrary…punitive damages should be granted in favour of plaintiff. Therefore, in my considered opinion an amount of Rs.5,00,000/­…is granted to the plaintiff in the form of punitive damages…along with interest @ 12% per annum during the pendency of the suit till its realization alongwith costs of the suit… Defendants, their its associates and agents are restrained from using the mark “adidas” and its logo and other registered trade­marks and copyright of the plaintiff…”

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