You’ve restrained the infringer with an injunction — now make them pay. This final part of the series covers damages: the three types, the Section 135(3) limits, and India’s growing appetite for exemplary awards.
What are damages?
Having covered injunctions and the prima facie case (and, in part two, balance of convenience and irreparable injury), the next question after restraining a defendant is compensation. Damages are the monetary compensation a court awards in a civil suit to the aggrieved party for the other’s wrongful conduct.
Three types of damages
Though not defined in any specific statute, judicial pronouncements yield three categories:
- Nominal damages — a small/symbolic sum where the party can establish but not sufficiently prove injury or loss.
- Compensatory damages — aim to restore the aggrieved party to its original position, making the defendant pay for the adverse impact on the plaintiff’s business.
- Punitive damages — awarded in excess of the loss, based on the defendant’s wilful or malicious conduct, to deter the wrongdoer and the like-minded.
Section 135(3): when only nominal damages
Section 135(3) limits relief to nominal damages where:
- the infringement is of a certification or collective mark;
- the defendant proves it was unaware of the mark and had no reasonable ground to believe the plaintiff owned/used it; or
- on becoming aware, the defendant forthwith ceased using the mark.
So no punitive/compensatory damages should follow if the defendant proves no knowledge or that it stopped on learning of the mark.
The punitive-damages trend
Courts have long granted nominal and compensatory damages (at the judge’s discretion), but were traditionally less liberal with punitive damages — a trend now changing:
- Time Inc. v. Lokesh Srivastava (2005) — for the first time, the court granted ₹5 lakh punitive damages (over and above other damages), saying it was time to discourage law-breakers “who indulge in violations with impunity out of lust for money.” It drew the compensatory vs punitive distinction — the latter aimed at deterrence — and, involving a magazine title, considered the loss to consumers misled into buying the defendant’s magazine.
- A case granting exemplary damages of ₹10 lakh — decreed ex parte on the plaintiff’s evidence of counterfeit products.
- Tata Sons v. Mohammed Javed — for a well-known mark, the rationale is two-fold: protect brand-building companies from reputational and financial harm, and protect consumers who pay a premium but get an inferior product.
The bottom line
Across this three-part series on injunctions and damages: if there’s a will, there’s a way — though, given the reality of Indian courts (which one hopes will improve), it can take time, but may well be worth it.
The takeaways
- Three types of damages — nominal, compensatory, punitive.
- Section 135(3) caps at nominal where there was no knowledge or use ceased promptly.
- Punitive damages are rising — from Time Inc. (₹5 lakh) onward, to deter deliberate infringers.
- Well-known marks attract a two-fold rationale — protecting brand owners and consumers.
See parts one and two of this series, and our enforcement practice.
Frequently asked questions
What types of damages can I recover for trademark infringement in India? Nominal (symbolic, where loss isn’t proven), compensatory (to restore your position), and punitive/exemplary (for wilful conduct, to deter).
When are only nominal damages available? Under Section 135(3) — for certification/collective marks, where the defendant proves no knowledge of the mark, or where it ceased use immediately on becoming aware.
Are punitive damages common in Indian trademark cases? Historically rare, but increasingly awarded since Time Inc. v. Lokesh Srivastava (2005), especially against deliberate infringers and counterfeiters.
Why do courts award damages for well-known-mark infringement? To protect the brand owner’s reputation and finances and to protect consumers who pay a premium expecting the genuine product.
Legislation referred to
- The Trade Marks Act, 1999