DELHI HIGH COURT
G.S. Sistani, J.
Atlantic Industries and Ors. —Plaintiffs
versus
Simron Food Processors (P) Ltd. —Defendant
CS (OS) 2185 of 2011
Decided on 26.5.2014

Headnote:Trademarks Act, 1999—Sections 2(1)(zg) —Suit for injunction and damages for infringement of registered trademark, passing off and for infringement of copyright—An interim injunction was granted against the defendant on 8.9.2011 and counsel for defendant entered appearance on 11.11.2011—Defendant submitted that the defendant has already stopped using trademark of plaintiffs and has no intention to use the same in furure—However, the counsel for defendant was not able to get the compromise application signed from the defendant as the defendant stopped responding to various letters sent by the counsel to defendant—Defendant was proceed ex parte—Plaintiff company organized and existing under the laws of the Cayman Islands was a wholly owned subsidiary of the coca-cola company—Allegations of misuse of trade mark SCHEPPES (word) and SCHWEPPES stylized logo) owned by plaintiff—Plaintiff holds trademark registrations for the trademark SCHWEPPES—Plaintiffs have established that the defendant has adopted and is using the trademark SCHWEPPES and has also copies the SCHWEPPES trade dress as used by plaintiffs—Whether the plaintiff are entitled to a decree of permanent and mandatory injunction against defendant—(Yes).

       Held: On the basis of the documents placed on record, the plaintiffs have established that plaintiff No. 1 is the owner of the trademark, logo SCHWEPPES and its allied trademarks and plaintiffs are also the copyright owner of the artistic work in the SCHWEPPES label and by virtue of the same plaintiffs have the exclusive right to use the said mark and logo and authorize the reproduction thereof. Plaintiffs have also established that on account of enormous amount spent on advertisement of brand SCHWEPPES in India, plaintiffs have been able to generate vast turnover for years and that during the past many years, the plaintiffs have built up an unparallel reputation and goodwill with respect to their trademark SCHWEPPES and its allied trademarks. Plaintiffs have also established that the Defendant has adopted and is using the trade mark SCHWEPPES and has also copied the SCHWEPPES trade dress as used by the Plaintiffs which comprises of SCHWEPPES written in a stylized manner with a FOUNTAIN device and a unique colour combination consisting of the colours silver and yellow. Plaintiffs have also established that said acts of the Defendant amounts to infringement of the registered trademarks SCHWEPPES (word) and SCHWEPPES (stylized logo along with “FOUNTAIN device”) and also amounts to infringement of the copyright work in the SCHWEPPES label which vests with Plaintiff No.1 and passing off their goods as the goods of the Plaintiffs.

       In view of the above, the plaintiffs are entitled to a decree of permanent and mandatory Injunction against the defendant from dealing with the goods having infringing mark in terms of clause (a) and (b) of prayer of the plaint.

       I am in agreement with the aforesaid submission of learned counsel for the plaintiff that damages in such cases must be awarded and a defendant, who chooses to stay away from the proceedings of the Court, should not be permitted to enjoy the benefits of evasion of court proceedings. Any view to the contrary would result in a situation where a defendant who appears in Court and submits its account books would be liable for damages, while another defendant who, chooses to stay away from court proceedings would escape the liability on account of failure of the availability of account books. A party who chooses not to participate in court proceedings and stays away must, thus, suffer the consequences of damages as stated and set out by the plaintiffs. There is a larger public purpose involved to discourage such parties from indulging in such acts of deception and, thus, even if the same has a punitive element, it must be granted. For the reasons stated above, the plaintiffs have made out a case for grant of decree as prayed in the plaint. Accordingly, the order dated 8.9.2011 is confirmed and the suit is decreed in favour of the plaintiffs and against the defendant. Plaintiff is also entitled to damages to the tune of Rs.2.00 lacs. (Paras 30, 31, 36 & 37)

       Result: Application disposed of accordingly.