The present suit came to be instituted on 31.05.2013 under Section 134 & 135 of the Trade Mark Act & Section 55 of the Copyright Act at first by Nike International Ltd of USA. During the pendency of the suit, an amendment was sought because of the change and formation of the company to M/s Nike Innovate C. vs, as a Limited Partnership organized under the law of Netherlands with its principal address of U.S.A.

The plaintiff prayed for a decree of permanent injunction to prevent the defendants by themselves as also through their individual properties or partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all other actions for and on their behalf from using, selling, soliciting, exporting, displaying, advertising or by any other manner or mode dealing in or using the impugned Trade Mark or Label 'NIKE' and Swoosh Device or any other word or mark or trade Markor label which may be identical with or deceptively similar to the Plaintiff's said Trade Mark or Label or Trade Name NIKE and SWOOSH Device in regard to its goods and business of Footwear and allied and cognate products and from doing any other acts or deeds amounting to or likely to

1. infringement of Plaintiff's registered Trade Mark as mentioned in the plaint;
2. Passing off and violating the plaintiff's right in the Plaintiff's said Trade Mark or Label NIKE AND SWOOSH Device;
3. and also from violating the copyright of the plaintiff in respect of the aforesaid Trade Mark/Label.

Plaintiff has also prayed for order delivery up of incriminating material and for a rendition of accounts of profits earned by the defendants.

Vide order dated 04.06.2013, the court passed an order of exparte injunction in favor of the plaintiff and against the defendants. At the same time, the Local Commissioner was appointed to visit the premises of the defendants, inspect the same, and submit reports. Consequently, the Local Commissioner submitted a report and the same is on record.

Upon service of summons, the appearance was put in on behalf of the defendant nos. 1 to 3. Defendant no.3 filed a written statement but ultimately, because of nonappearance, this defendant came to become exparte. Defendant nos. 1 & 2 have also proceeded exparte.

Issues

The following issues were framed:

1. Whether the defendant has infringed the plaintiff's trademark and or passed of the goods as those of the plaintiff?
2. Whether the plaintiff is entitled to any damages and or rendition of accounts? 

Judgment

From the material available on record, the court finds that the plaintiff has established the use of the aforesaid trademark or label 'NIKE' and violation of said trademark or label 'NIKE' of the plaintiff in addition to the copyright in respect of its goods i.e. footwear.

The defendants have no right to use the impugned trademark for the reason being that this misuse is particularly going to mislead the customers of the plaintiff and the other public while buying footwear of the plaintiff. The attempt of the defendants by using said trademark or label and the copyright is to make undue enrichment by creating deception and conception in the trade and in the minds of the customers.

In view of the above discussion and the material available on record, the court finds that this is a fit case where the plaintiff is entitled to the decree for permanent injunction as prayed for.

So far as relief of damages is concerned, defendants have not come forward to contest the case or to lead evidence relating to the earnings by the sale of goods using the aforesaid trademark or label 'NIKE' of the plaintiff by way of infringement. Had the defendants come forward, it could be assessed as to what were the earnings /profits of the defendants on this account. It is notably the plaintiff who has also not led any evidence on the quantum of damages.

Keeping in view the user of the trademark by the plaintiff and its misuse by the defendants ever since the year 2013 and loss of reputation of the plaintiff, in this manner, the court deems CS. (Comm) No.542/19 M/s Nike Innovate C. V. vs. M/s G.B. Shoe Page No.8 of 9 it fit to permit nominal damages to the plaintiff to the tune of Rs.1.50,000/ i.e. Rs.50,000/ from each defendant.

As a result, the suit of the plaintiff is hereby decreed in its favor and against the defendants with a cost.   Consequently, the decree of a permanent injunction is hereby passed in favor of the plaintiff and against the defendants, restraining them as their representatives, agents, assignees, and dealers, etc from using the trademark or label 'NIKE' and copyright of the plaintiff, identical with or deceptively similar to the plaintiff's a trademark or label and copyright in relation to the footwear, in which the plaintiff deals and from the passing of their goods and business in violation of the plaintiff's a trademark or label and copyright.

The suit is also decreed in favor of the plaintiff and against the defendants for nominal damages to the tune of Rs.50,000/ each.