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TMI Blog2005 (1) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaint, details of its annual average paid circulation have been given. To cater to the specific needs and requirements of a world fragmented into continents and regions, the plaintiff has launched various international editions including 'TIME ASIA' which was introduced in July, 1946 for the residents of Asia. The details of the average paid circulation of 'TIME ASIA' have been given in para 14 of the plaint. The details of the registration in India of the trade mark 'TIME' and its cover design with red border device have been given in para 16 of the plaint. It has been pleaded that these registrations confer upon the plaintiff's exclusive right to use the said mark to the exclusion of all others. LIVING MEDIA is its distributor in India since 1994. The details of the circulation of this Magazine in India, its revenue and publicity expenses are given in Para 17 of the plaint. The plaintiff has alleged that the defendants started printing, publishing and distributing for sale ''TIME ASIA SANSKARAN'' by using the words ''now in Hindi also a News Magazine of International standards''. This press release indicating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rld renowned Magazine 'TIME' and 'TIME ASIA' of the plaintiff. The adoption of the red border design on the cover page is also aimed at confusing and misleading the members of the trade and general public. In these premises, the plaintiff claims a decree of permanent injunction restraining the defendants, their officers, servants, agents, representatives and related companies from launching, publishing, issuing and advertising their Magazine under the trade mark 'TIME ASIA SANSKARAN' and from using the component 'TIME ASIA' or 'TIME' together with or separately in conjunction with any prefix or suffix or from using any other trade mark which is deceptively similar to the plaintiff's trade mark 'TIME' and from using the distinctive reborder, design, so as to infringe the plaintiff's registered trade mark No. 100539, 173307 and 407004. An order for delivery up of all goods bearing the impugned mark including letterheads, literature, magazines, negatives, dies, blocks, labels, promotional material, stationery articles or any other infringing material is also prayed. A decree of damages in the sum of Rs. 12.5 lacs on account of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve an enormous goodwill, reputation and recognition in trade as well as general public. The defendants' effort is to make undue enrichment by creating confusion and deception in the trade as well as consumers and attract advertisements for its Magazine and have higher circulation. This attempt on the part of the defendants has to be condemned and contained. Therefore, this Court has no hesitation in holding that the plaintiff has succeeded in establishing on record that the defendants are infringing its trade name and copyrights in over design of its magazine ''TIME ASIA''. The plaintiff has claimed a decree of Rs. 12.5 lacs on account of damages suffered by the plaintiff or an order of rendition of accounts of the profits illegally earned by the defendants by use of the impugned trade mark. In view of the fact that the defendants have not chosen to turn up and face these proceedings, this Court is of the considered view that an order of rendition of accounts is fully warranted and called for. Damages in the sum of Rs. 12.5 lacs as claimed cannot be awarded on account of the fact that the plaintiff has not succeeded in proving on record as to how and on what bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 347 F.3d 672 (7th Cir. 2003) the factors underlying the grant of punitive damages were discussed and it was observed that one function of punitive damages is to relieve the pressure on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes. It was further observed that the award of punitive damages serves the additional purpose of limiting the defendant's ability to profit from its fraud by escaping detection and prosecution. If a tortfeasor is caught only half the time he commits torts, then when he is caught he should be punished twice as heavily in order to make up for the times he gets away This Court feels that this approach is necessitated further for the reason that it is very difficult for a plaintiff to give proof of actual damages suffered by him as the defendants who indulge in such activities never maintain proper accounts of their transactions since they know that the same are objectionable and unlawful. In the present case, the claim of punitive damages is of Rs. 5 lacs only which can be safely awarded. Had it been higher even, this court would not have hesitated in awarding the same. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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