AN INEXPLICABLE RIDDLE - NO UNIFORMITY IN AWARDING PUNITIVE DAMAGES ON INFRINGEMENTS OF TRADE MARKS BY INDIAN COURTS – A COMPARATIVE STUDY
trademark, infringement cases, damages, punitive damages, compensatory damages award, defendant’s misconduct, evaluation of the damages, Principles of damages, methodology of damages.
For last few years the Indian Courts have been awarding damages for infringement in Trademark cases reveals though there is no specific statutory provision laid under trademark law or any other civil laws, but off late the judges have been awarding damages without establishment of uniform and legally tenable parameters for computing the amount of damages to be awarded to successful plaintiffs In one of the matters the Delhi High Court has held in the matter of Disney Enterprises, Inc vs Mr. Rajesh Bharti decided on 13 February, 2013, wherein the court has referred the case of Microsoft Corporation Vs. Rajendra Pawar & Anr., CS(OS) 530/2003 decided on 27th July, 2007 has held this Court is also of the view that before award of damages it is not necessary that the plaintiff must show some particular benefit has accrued to the defendant or that the plaintiff must satisfy the Court by leading evidence that it has suffered actual loss. In Microsoft Corporation Vs. Ms. K. Mayuri & Ors., this Court has held "The practice of grant of exemplary damages needs to be strengthened particularly in those cases where flagrant infringement is found. Such an exercise of power is not to be fettered by any requirement that the plaintiff must show some particular benefit which has accrued to the defendant or that the plaintiff must satisfy the court by leading evidence that he has suffered actual loss. In a case where the plaintiff proves such actual loss, he would be entitled to the same. However, even without such a proof, in case of flagrant infringement, the court has the complete discretion to make such award of damages as may seem appropriate to the circumstances, so that it acts as deterrent. In some cases, it is not possible to prove the actual damages, namely, that there is a normal rate of profit or that there is a normal or establish licensed royalty. Yet, clearly, the damages have to be assessed." This Court has awarded the cost of Rs.3.00 Lacs as ex-parte decree to the plaintiff, keeping in view of the above; the different judges have made out their own individual formulas without applying scientific reasoning or support while awarding damages to the successful plaintiffs. World over the courts grant punitive damages in trademark infringement actions are based under quantum of damages fixed as per statutory laws or are following the judicial precedents. But so far all Indian courts are awarding damages do not have any reasoned scientific approach or tried and tested formula to decide the quantum of damages in each case, as such there is neither uniformity in deciding quantum of damages nor there any statute standardisation provision for the courts to decide within that defined parameters. This paper is going to carry out detailed comprehensive study including finding out uniform, standardised legally tenable criteria, each factors of proof of infringement to be considered including question of whether punitive damages should be awarded keeping tin view of the defendant’s misconduct as well as presence of certain factual findings observed by the court and the same may be correlated with the by applying statistical figures of quantum of sales, profits/ loss of sales of non litigation period of the plaintiff, so as to bring out reasonable criteria to quantify such damages that can be correlated with sound reasoning in awarding quantified damages to plaintiff. So that becomes a powerful deterrence for trademark infringement cases. This paper proposes creation of uniformed standardise check list to be considered before appropriation of quantum of damages in such infringement cases. This Paper is going to carry out critical evaluation of the damages awarded so far by the Indian Courts.
"AN INEXPLICABLE RIDDLE - NO UNIFORMITY IN AWARDING PUNITIVE DAMAGES ON INFRINGEMENTS OF TRADE MARKS BY INDIAN COURTS – A COMPARATIVE STUDY", IJSDR - International Journal of Scientific Development and Research (www.IJSDR.org), ISSN:2455-2631, Vol.4, Issue 3, page no.540 - 556, March-2019, Available :https://ijsdr.org/papers/IJSDR1903096.pdf
Volume 4
Issue 3,
March-2019
Pages : 540 - 556
Paper Reg. ID: IJSDR_190291
Published Paper Id: IJSDR1903096
Downloads: 000347249
Research Area: Management
Country: Delhi, DELHI, India
ISSN: 2455-2631 | IMPACT FACTOR: 9.15 Calculated By Google Scholar | ESTD YEAR: 2016
An International Scholarly Open Access Journal, Peer-Reviewed, Refereed Journal Impact Factor 9.15 Calculate by Google Scholar and Semantic Scholar | AI-Powered Research Tool, Multidisciplinary, Monthly, Multilanguage Journal Indexing in All Major Database & Metadata, Citation Generator
Publisher: IJSDR(IJ Publication) Janvi Wave
