HIMALAYA DRUG COMPANY Vs. SUMIT

JUDGEMENT

(1.) THE plaintiff, the Himalaya Drug Company, a partnership firm, has instituted this suit through Mr Ravi Tikku, the Regional Manager of the plaintiff for Delhi and who is also the duly constituted attorney of the plaintiff under a power of attorney being Exhibit P2. THE suit has been instituted for permanent injunction, restraining infringment of copyright, passing off, rendition of accounts etc. THE reliefs claimed in the suit are as under:

(2.) THE defendants, by virtue of an order dated 27.2.2004, were directed to be proceeded against ex parte. THEreafter, the plaintiff has led its ex parte evidence in the form of an affidavit and has proved the various documents exhibited being Exhibit P1 to P15. THE plaintiff is engaged in the manufacture and sale of Ayurvedic Medicinal preparations and was established in the trade in the year 1930. Realising the potential of the Internet as a medium of information, the plaintiff registered its own domain name www.thehimalayadrugco.com on 10.6.1998 and developed a website under the said name. Exhibit P3 is a computer printout indicating the same. THE website contains various features and write ups on Ayurveda, animal health products, Ayurvedic Herbs and minerals, Himalaya Herbals, Himalaya Herbal Healthcare etc. THE most important feature of the website is the section titled HIMALAYAS HERBS . This section essentially consists of a data base of a wide variety of medicinal herbs, arranged in alphabetical order. Under the head of each herb there is presented information relating thereto. Such information is not only comprehensive but is also arranged in a manner that is visually appealing and easy to grasp. Exhibit P4 comprises of a printout of the homepage of the plaintiff and other relevant pages from the said website. THE plaintiff has been able to establish that it had advertised this website extensively in leading newspapers and journals. To show that the plaintiff's website has become extremely popular, the plaintiff has produced computer printouts of E-mail messages received by the plaintiff in relation to the said website. THE said website of the plaintiff and, particularly, the section titled Himalayas Herbs consists of a database of over 209 herbs which essentially is a detailed monograph on each of the said herbs. THE computer printout of the plaintiff's web pages containing the detailed monograph for one of such herbs Abelmoschus Moschatus is exhibited as Exhibit P5. THE plaintiff, it is clear, has expended considerable time, labour, skill and money in preparing this data base of Ayurvedic Herbs that find mention on its website. THE plaintiff has claimed that the preparation of the database began sometime in June, 1998 and took more than a year to complete. Since the defendants have chosen not to appear or controvert any of these statements, the same stands established. This clearly indicates that substantial investment has gone into the creation of the said database in terms of time, labour, skill and money. Even the selection of the 209 herbs that find mentioned in the website was a laborious task as the plaintiff had to select from over 40,000 herbs. It is further established that the employees of the plaintiff who have created the herbal database did so during the course of their employment and had given no objection certificates stating that the copyright in the said database and all its accompanying elements vests with the plaintiff. THE no objection certificates are collectively exhibited as Exhibit P6. It, therefore, becomes clear that the plaintiff is the owner of the copyright in the said herbal database including the writeup and/or description of each herb that is comprised therein. It is also clear that the arrangement of features on the plaintiff's website and in, particular, the section relating to Himalayas Herbs including the layout, placement on details, getup and the look and feel cumulatively constitute a trade dress . On 27.3.2000, the plaintiff noticed that the defendants were operating a website http://ayurveda.virtualave.net which reproduced the plaintiff's entire herbal data verbatim. Computer printouts of the home page and other relevant pages of the defendants said website are exhibited as Exhibit P7. A comparison of the defendant's website with that of the plaintiff's reveals that the defendant has not only copied the preliminary information of each herb but also the detailed monograph. This can be easily ascertained by comparing Exhibits P-12 and P-13. THE copying is to such an extent that even the grammatical or syntactical errors that appear on the plaintiff's website have been copied on to the defendant's website. This can be ascertained by an examination of Exhibit P- 14. It therefore becomes clear that, inasmuch as the defendant's website has been registered two years after the plaintiff's website, the defendants have been misappropriated the effort, skill and expense that has gone into the creation of the plaintiff's website. THEreby the defendant has copied the entire herbal database of the plaintiff and has thereby infringed the copyright of the plaintiff. THE plaintiff has also been able to demonstrate that the defendants have attempted to pass off its herbal database as and for that of the plaintiff's and have also violated the trade dress rights that exist in respect of the plaintiff's herbal database. THE reason being that the plaintiff's herbal database is unique and, therefore, any similar herbal database that appears on a different website is bound to create confusion by causing a consumer to associate the website with that of the plaintiff's. If any further evidence of the defendants' conduct in attempting to pass off its website as that of the plaintiff's were needed, it is clear from Exhibit P15 wherein the metatag of the source code of the defendants website includes the plaintiff's trademark Himalaya Drug Co. From the aforesaid discussion, it becomes clear that the plaintiffs are entitled to the reliefs (i) to (iv) as claimed in the prayer clause of the plaint. As regard the question of damages, the plaintiff has claimed an order for damages of Rs.15 lacs which, according to the plaintiff, it has suffered by way of the defendant's aforesaid activities inasmuch such activities have seriously eroded, diluted and reduced the value of the plaintiff's website, database and intellectual property and caused the plaintiff loss of business reputation and untold hardship. With regard to the extent of damages, Mr Ravi Tikku has filed an affidavit dated 23.11.2005. THE said Mr Tikku is the same person who gave the evidence by way of affidavit in support of the plaintiff's case and along with which the documents filed have been exhibited as Exhibits P-1 to P-15. THE present affidavit dated 23.11.2005 has been filed specific to the question of damages. Annexed as Annexure A to this affidavit is a chart prepared by the Finance Department of the plaintiff company to put a value on the effort put in for the creation, compilation and hosting of the herbal database on the plaintiff's website www.thehimalayadrugco.com. According to the said chart expenditure on the said project has been split under three categories: (1) manpower (2) website cost (3) average overhead cost. THE total cost as indicated in the chart qua the creation, compilation and hosting of the said database on the plaintiff's website comes to Rs.7,94,227/-. According to the learned counsel for the plaintiff, inasmuch as the defendants have been proceeded with ex parte, the loss of revenue method for computing damages would not be appropriate. This is so because the extent of the defendants business cannot be ascertained. Consequently, the loss to the plaintiff cannot be quantified. However, compensatory damages may be quantified by adopting the principle of what would be the similar cost of creating such a portal, had the defendants not copied the contents of the plaintiff's website. Obviously a good measure would be the cost incurred by the plaintiff itself for the creation of such a website. THErefore, compensatory damages to the tune of Rs.7,94,227/- can be easily awarded to the plaintiff. THE learned counsel for the plaintiff has also prayed for punitive and exemplary damages. THE learned counsel for the plaintiff has relied upon a decision of this court in the case of Time Incorporated v Lokesh Srivastava & Anr rendered on 3.1.2005 in CS(OS) No.2169/1999 by a learned Single Judge [R.C. Chopra, J] of this court. In that decision, the court observed that in cases of infringment of, inter alia, copyrights, courts should not only grant compensatory damages but award punitive damages also with a view to discourage and dishearten law breakers who indulge in violations with impunity out of lust for money so that they realise that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them. After discussing the case of Mathias v Accor Economy Lodging report in 347 F.3d 672 (7th Cir.2003). THE learned judge was of the view that 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. In that case, the learned Judge awarded an amount of Rs.5 lacs by way of punitive damages equivalent to the damages of Rs.5 lacs which he awarded on account of loss of reputation of the plaintiff. Similarly, the learned counsel for the plaintiff prays for punitive damages equivalent to the compensatory damages claimed in the present case. I have no difficulty in accepting the same principle and, therefore, feel that punitive damages to the extent of Rs.7,94,227/- can also be awarded. Accordingly, I direct that the plaintiff is entitled to an ex parte decree in terms of reliefs (i) to (iv) claimed in the plaint. THE plaintiff is also entitled to a decree of Rs.7,94,227/- by way of compensatory damages as well as a decree in the sum of Rs.7,94,227/- on account of punitive/exemplary damages in the plaintiff's favour and against the defendants. THE plaintiff is also entitled to costs. THE damages awarded shall be payable by the defendants jointly and severally and shall carry interest @ 9% per annum from the date of the decree till date of payment. A decree be prepared accordingly.