For most of the history of Indian intellectual property litigation, the money did not matter: the plaintiff wanted the injunction, got it at the interim stage, and let the suit drift. That has changed in the last decade. Courts, led by Delhi, have awarded damages running into crores, articulated principles for punitive awards, and used the costs provisions of the commercial courts law to make losing expensive. Damages are now worth pleading properly.
Quick reference
| Compensatory damages | The plaintiff’s actual loss — lost sales, lost royalties, harm to goodwill — proved by evidence |
| Account of profits | The defendant’s gains from the infringement, as an alternative to damages, at the plaintiff’s election |
| Punitive damages | Available for deliberate, flagrant infringement, within principles the courts have set; not automatic |
| Statutory limits | No damages against an innocent infringer of copyright or a patent; a ₹50,000 cap on the fixed-sum route for designs |
| Costs | Follow the event under the commercial courts law — actual costs including counsel’s fees, not nominal sums |
| Where the money is decided | At final judgment, or on a summary basis where the defendant does not contest |
Compensatory damages
The measure is the plaintiff’s loss caused by the infringement: sales lost to the infringing product, royalties that a licence would have earned, price erosion, damage to reputation and goodwill, and the cost of corrective advertising. Proof is by the plaintiff’s own sales records before and after, the defendant’s disclosed sales, market evidence and, increasingly, expert reports. Where exact proof is impossible, courts estimate on the material available rather than award nothing — but the estimate is only as good as the material.
Account of profits
Instead of its own loss, the plaintiff can elect to take the defendant’s profits from the infringement. This suits cases where the plaintiff’s loss is hard to show but the defendant plainly made money — a counterfeiter, a copyist selling in a market the plaintiff had not yet entered. It requires the defendant’s accounts, which is why disclosure orders and the local commissioner’s seizure of records at the interim stage matter. The election is made once; a plaintiff cannot have both.
Punitive damages
Indian courts award punitive or exemplary damages in intellectual property cases, and for a period the Delhi High Court did so almost as a matter of course against defendants who did not appear. A division bench of that court pulled the practice back in 2014, holding that punitive damages must rest on principle: the defendant’s conduct must be of the kind that justifies punishment — calculated to profit from the wrong beyond any compensation, or otherwise flagrant — and the award must be proportionate and reasoned. Since then punitive awards are made in cases of deliberate counterfeiting, repeat infringement, breach of earlier orders and conduct designed to deceive, and they are explained.
Recent awards in the Delhi High Court include damages of several crores against counterfeiters and deliberate infringers, with the court computing the sum from the defendant’s turnover, the duration of the infringement and the nature of the conduct. Awards in that range remain the exception, but they are no longer unheard of, and they set the frame in which settlements are negotiated.
Statutory limits
Copyright. A defendant who proves it did not know, and had no reasonable ground to believe, that copyright subsisted in the work is liable only for an injunction and such part of its profits as the court thinks reasonable — no damages.
Patents. No damages or account of profits against a defendant who proves it was not aware, and had no reasonable grounds for believing, that the patent existed. Marking the product with the patent number is what removes this defence, and an unmarked product means the money claim starts from the date of the warning letter.
Designs. The proprietor may elect a fixed sum of up to ₹25,000 per contravention, capped at ₹50,000 per design, recoverable as a debt without proof of loss — or sue for damages without cap. And where the article was not marked as registered, no money is recoverable unless the defendant knew of the registration.
Trademarks. No statutory limit. Damages and an account of profits are available on ordinary principles.
Costs
The commercial courts law replaced the old discretionary, nominal costs with a rule that costs follow the event: the unsuccessful party pays the successful party’s costs, which include court fees, counsel’s fees, witness expenses and the costs of the proceedings, assessed on actual and reasonable figures. The court can depart from the rule for reasons recorded, and can penalise conduct — frivolous claims, refused settlement offers, delay — in the costs order. In the High Courts, costs awards of several lakh rupees, and higher, are now routine at the end of a contested suit, and are awarded against plaintiffs who lose as readily as against defendants.
When the money is decided
Damages are assessed at final judgment, after evidence. Where the defendant does not appear, courts decide the suit summarily on the plaintiff’s evidence and award damages on that basis; where the defendant appears and contests, the trial takes years, which is why most cases settle after the interim order with a payment that reflects the exposure. A plaintiff that wants damages has to plead them with particulars, seek the disclosure and commissioner’s orders that produce the evidence, and pursue the suit to judgment rather than letting it lapse once the injunction is secured.
Interest and other sums
Interest on damages from the date of the suit is ordinarily awarded. Delivery up and destruction of infringing goods, and rendition of accounts, accompany the money decree. Where the defendant has breached an interim order, the court can order it to pay the plaintiff’s losses from the breach as a separate head, and can punish the contempt.
Frequently asked questions
What damages can I get for IP infringement in India? Compensatory damages for actual loss, or an account of the defendant’s profits at your election, plus punitive damages in cases of deliberate, flagrant infringement. Costs are awarded on actual figures under the commercial courts law.
Do Indian courts award punitive damages in IP cases? Yes, for deliberate counterfeiting, repeat infringement, breach of orders and conduct designed to deceive, within principles the Delhi High Court laid down in 2014. They must be reasoned and proportionate; they are not automatic.
Can I get damages against an infringer who did not know about my right? For copyright and patents, no — an innocent infringer is liable only for an injunction and, in copyright, a share of profits. Marking products and sending a warning letter remove the defence going forward. For trademarks there is no such limit.
How much are damages in Indian IP cases? From nominal sums in older cases to several crores in recent Delhi High Court judgments against counterfeiters and deliberate infringers. The figure depends on the evidence of loss or profit, the duration and scale of the infringement, and the defendant’s conduct.
Who pays the costs of an IP suit in India? Under the commercial courts law, the losing party, on actual and reasonable figures including counsel’s fees, unless the court records reasons to depart from the rule.
How do I prove damages? With your own sales records, the defendant’s disclosed accounts, records seized by the local commissioner, market evidence and expert reports. Disclosure and commissioner’s orders sought at the interim stage produce most of the evidence.
Useful official resources
- Delhi High Court — judgments — recent damages awards in IP cases
See our related notes on intellectual property litigation in India, evidence and investigation and interim injunctions.
A suit that should end in a number, not just an order? Talk to us.