At the outset, this judgment dated 09 November 2017 doesn’t have much to offer in terms of jurisprudential inputs. You may then be wondering why I am discussing this case. On quite a few occasions, especially in the arena of IPR, ex parte cases arise. The Delhi High Court, in this case, discusses the judicial approach towards such cases. The legal position is, of course, no longer res integra. Even then, revising one’s knowledge on the same is not a bad idea! Further, the judicial approach vis-a-vis the prayer for damages is also to be noted in this regard.
Facts
The plaintiff filed the present suit (CS(COMM) 1434/2016 & I.A. 13032/2016) inter alia for permanent injunction restraining infringement of its trademarks. In this regard, the plaintiff sought permanent injunction against the use of “trade name Varizon Tech and/or Varizon Technologies, the domain name www.varizontech.com, or any other trademark and name which are either identical with or consist of a designation which is deceptively similar to the Plaintiffs’ well-known and Verizon trademarks, logos and name and any other mark deceptively similar thereto…” The court, vide order dated 21 October 2016 granted an ex- parte ad interim injunction in favour of the plaintiffs. The defendants were served with cease and desist letters on two occasions, dated 20 May 2016 and 25 July 2016. Since the defendants did not appear, the proceedings were initiated ex-parte vide Order dated 21 April 2017.
The plaintiffs claimed that their marks containing ‘VERIZON” enjoy international reputation and further, enjoy trademark registrations. The plaintiffs contended that the defendants were using marks containing “VARIZON” which are similar to the marks of plaintiff.
Judicial approach in ex-parte case
As the evidence adduced by the plaintiff was not rebutted, it was accepted as factually correct. The High Court referred to the Supreme Court judgment in Ramesh Chand Ardawatiya Vs. Anil Panjwani (AIR 2003 SC 2508) which held as follows:
“33. ………In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the “points for determination” and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.”
Damages
It may be noted that, even though it was an ex-parte case, the Court refused to accept the prayer with regard to damages. It was observed that the plaintiff did not adduce any evidence with regard to the quantum of damages suffered by the plaintiff. [Cases cited: Delhi High Court judgments in Hindustan Unilever Limited Vs. Reckitt Benckiser India Limited, 2014 (57) PTC 495 [Del][DB] and Super Cassettes Industries Private Limited Vs. HRCN Cable Network, CS(COMM) 48/2015 dated 09th October, 2017]
Whether plaintiff’s marks are well-known?
On a prima facie basis, the Court held that the marks satisfy the requisite criteria for “well-known marks” (laid down in sections 2(1)(zg) read with sections 11(6), 11(7), 11(8) of the Trade Marks Act, 1999). Since the defendants did not appear and contest the contentions of the plaintiff, the Court refused to deal with this issue. I am not sure of the strength of the aforesaid reasoning. The determination as to whether a mark is well-known or not is an independent determination based on adduced evidences and arguments. A more elegant approach might have been to refuse to hear this issue altogether, citing redundancy. I may be wrong. I am open to be corrected here.