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Plaintiff Entitlement To Notional Damages And Legal Cost In Ex Parte Matters

When Defendant participates in a Suit proceeding, it is easy for the Plaintiff to fix accountability on the Defendant regarding relief of Damages. But where Defendant is ex-parte , it becomes a difficult Job for the Plaintiff to establish damages. In such a situation , where Defendant is ex-parte, which kind of relief can be granted to the Plaintiff , in so far as award of damages is concern?

Before the Intellectual property Division of Hon'ble High Court Delhi one of such issue came up where Hon'ble Single Judge, though refused to grant any relief of damages on the presumptive calculation of damages , was pleased to grant relief of national damages and relief of cost towards legal cost incurred by the Plaintiff.

The Plaintiff namely Starbucks Corporation claimed proprietary right in the trademark FRAPPUCCINO and variations thereof for its widely popular hand-crafted blended cold beverages through out world including India.

The subject matter Suit bearing CS Comm 479 of 2019 titled as Starbucks Corporation Vs Teaquila A Fashion Cafe and another was filed by the Plaintiff before the Hon'ble High Court of Delhi against use of beverages by the Defendant under the Trademark BUTTER SCOTCH FRAPPUCCINO' and 'HAZEL NUT FRAPPUCCINO.

Vide order dated 03.09.2019 the Plaintiff was granted ex parte injunction in favour of the Plaintiff and against the Defendant. Subsequently Defendant was proceeded ex parte and Plaintiff lead ex parte evidence. It was not difficult for the Hon'ble High Court of Delhi in awarding relief of permanent injunction in terms of prayer asked for.

Now the question was how to obtain the relief of damages. Naturally it was incumbent upon the Plaintiff to prove damages. As Defendant was proceeded ex-parte it was not an easy task for the Plaintiff to prove damages.

One more important aspect of this case was that even no any impugned product of the Defendant was recovered from the premise of the Defendant.

The Plaintiff was having very limited option to prove the damages. As Defendant was proceeded ex parte , even no document was no any way to ascertain the actual damages done by the Defendant.

This was the reason, Plaintiff's reliance on Judgement reported as Cartier International AG & Ors. v. Gaurav Bhatia & Ors., 2016 SCC OnLine Del 8 were not of any help as in Cartier International matter, products of defendants were recovered from the premise of the Defendant.

Similarly in another Judgement namely Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd., 2014 SCC OnLine Del 490 relied upon by the Plaintiff was also of no help to plaintiff as this case was pertaining to generic disparagement where the Plaintiff proved damages as there were evidence of advertisement of the Defendant.

In this case, the Plaintiff calculated the assumed damages on the basis of price mentioned on the menu card of the Defendant. Even monthly sales of the Defendant was calculated on the basis of presumption. As in this case , Plaintiff's calculation of damages was calculated on the basis of presumption and hypothesis, no relief of damages was granted to the Plaintiff.

However the Court granted the relief of notional damages to the tune of Rupees two Lakhs following the principle laid down in Judgement reported as Indian Performing Right Society v. Debashis Patnaik, 2007(34) PTC 201 Del.

Another important aspect of this Judgement dated 06.05.2022 passed by Hon'ble High Court of Delhi in Suit bearing CS(COMM) 479/2019 titled as Starbucks Corporation Vs Teaquila A Fashion Cafe and another was that the Plaintiff was awarded the relief of towards cost incurred by the Plaintiff, including the fee of the lawyers and the Court Fee, which amounts to a total sum of Rupees Nine Lakhs Sixty thousand and one hundred. The court , thus encouraged the practice of granting relief of cost incurred by the Plaintiff while filing and prosecuting the suit.

It is apparent that for the Plaintiff to obtain the relief of damages, actual damage is required to be establish by the Plaintiff ,which of course can not based on mere assumption and presumption.

However where Plaintiff is unable to prove actual damages, especially in ex parte matters , the Court is entitled to grant the relief of notional damages to the Plaintiff and also the cost of litigation incurred by the Plaintiff.

This Judgment will certainly encourage the right holders who are forced to indulged in litigations and of course will act as deterrent for pirates and violators who do not take court cases seriously and instead choose to remain absent in legal proceedings.

Written By: Ajay Amitabh Suman, Advocate, Hon'ble High Court of Delhi
Email:[email protected], Mob: 9990389539

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