Over the recent months, one of the most debated topics in the Indian IP industry has been the calculation of damages in IP cases and the methodology to be adopted in quantifying damages. The rights holders major concern has been that the law does not impose a sufficient financial deterrence to help the clamp down on infringement and piracy. The Courts decision discussed below provides much needed progressive guidance to rights holders and recognises that the loss of revenue model may not be universally appropriate in determining damages.
Background The plaintiff, The Himalaya Drug Company (THDC) filed the copyright infringement and passing off action (CS (OS) 1719/2000) against Sumit, proprietor of the website http://ayurveda.virtualave.net. THDC has been engaged in the manufacture and sale of Ayurvedic Medicinal preparations since 1930. In 1998 it launched the website www.thehimalayadrugco.com with various writes up on ayurveda & ayurvedic herbs etc and integrated a database of a wide variety of medicinal herbs with relevant information, namely HIMALAYAS HERBS.