Delhi District Court
Mr. Mahboob Alam vs Flipkart Internet Private Limited And ... on 28 January, 2026
IN THE COURT OF SH. LOKESH KUMAR SHARMA
DISTRICT JUDGE (COMMERCIAL COURTS)-05,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CS (COMM) 181/2022
CNR No. DLST01-001764-2022
Mr. Mahboob Alam
10-2-318/1/98, Vijay Nagar Colony,
Opposite Owaisi Park, Hyderabad,
Telangana-500057,
Having Branch office at:
F-457, Dakshin Puri,
Dr. Ambedkar Nagar,
New Delhi ..... Plaintiff
Versus
1. Flipkart Internet Private Limited
Building Alyssa, Begonia & Clover,
Embassy Tech Village, Outer Ring Road,
Devarabeesanahalli Village,
Bengaluru, Karnataka-560103
2. Khalique Ahmad
Trading as Beston,
12-1-613, 1st Floor, Syed Ali Guda,
Hyderabad, Telangana-500028
3. Mohd. Faisal Nadeem
Trading as Fedra,
12-1-487/472, 2nd Floor,
Houda Colony Beside City,
Diamond Hotel, Asif Nagar,
Hyderabad, Telangana-500028
Also at:
12-2-37/B/31,
Zeba Bagh, Asif Nagar, Mehdipatam,
Hyderabad, Telangana-500028
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 1 of 49
4. Bhuvaneshwari Gurram
Trading as ASTRO
H. No. 18-8-303/A/16/2/A,
Tanajinagar, Uppuguda,
Hyderabad, Telangana-500053 ..... Defendants
Institution of the Suit : 05.03.2022
Arguments concluded on : 14.01.2026
Judgment pronounced on : 28.01.2026
JUDGEMENT
1. This suit for permanent and mandatory injunction, delivery up, damages and rendition of accounts has been filed by the plaintiff for restraining infringement of trade mark and copyright against the defendants.
2. Brief facts:- As per plaintiff, who is claiming himself to be a lawful, bonafide and registered owner of trademarks and word mark "SKYSPIRIT" and he was stated to be engaged in the manufacturing and supplying of the bags of various specifications, shapes, sizes and designs. Those designs were stated to be the own innovations of Plaintiff, who was having his head office and manufacturing unit at 10-2-318/1/98, Vijay Nagar Colony, Opposite Owaisi Park, Hyderabad, Telangana-500057 and his branch office at F-457, Dakshin Puri, Dr. Amdedkar Nagar, New Delhi-110062.
Defendant no. 1 was stated to be an e-commerce company having its headquarter in Bangalore, Karnataka and was one of the largest e-commerce platforms operating in the country.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 2 of 49Defendants no. 2, 3 and 4 were stated to be unlawful operators, who were imitating the Plaintiff's registered trademarks and also his goods, designs and copying the manner of Plaintiff's presentation for offering his goods for sale.
They were also stated to be selling their goods through Defendant no. 1. Plaintiff was selling his goods under the names of Meesho, Shopee, AJIO, which he had started manufacturing since 2019. The quality of the goods of Plaintiff was stated to be superior in terms of material and were having indigenous designs and utility and thus the products of Plaintiff had gain popularity and had also built enviable reputation and formidable goodwill amongst its consumers through online platforms.
Plaintiff was stated to have sold total 91,983 units between 15.02.2021 till 06.02.2022 through Defendant no. 1 alone and his gross sales were to the tune of Rs. 4.45 crores.
Defendant no. 1 had also awarded 'Certificates of Achievement' to the Plaintiff on 01.09.2020 and 01.12.2020 as he was stated to be "Gold seller status on Flipkart marketplace for exceptional performance" for the period 01.06.2020 till 29.08.2020 and 01.09.2020 to 29.11.2020 respectively.
Plaintiff had also described various sales made by him in respect of goods of his registered trademark during different periods raging from April to December 2021.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 3 of 49It was averred further that in July 2021, Plaintiff came to know that Defendants no. 2 and 3 had also started selling inferior quality but identically designed bags as those designed and manufactured by the Plaintiff under his own trademark. Even the said goods sold by defendants no. 2 and 3 were also of different shapes, sizes and utility and were showcased by the defendants in the same designs but in a different colour combination.
The goods sold by defendants were sufficient enough to create a suspicion in the minds of the customers that they were purchasing the goods belonging to the Plaintiff.
Defendants no. 2, 3 and 4 were stated to be selling their goods under the farcical names such as Beston, Fedra and Astro respectively with only object and intent to carry on with their illegal activities with impunity without the fear of getting caught or putting to task under the authority of law.
Plaintiff had also brought this factum to the knowledge of Defendant no. 1, however, defendant no. 1 had failed to take any appropriate and prompt action against the defendants no. 2, 3 and 4.
It was averred further that Plaintiff got his trademark and word mark 'SkySprit' registered on 16.04.2021 and 06.01.2022 respectively and the Plaintiff's word mark "SKYSPRIT" was registered on 06.01.2022 availing protection CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 4 of 49 of registration since the date of application i.e. 04.08.2021, however on 11.01.2022, defendant no. 2 had also filed an application for registration of "Skysprit" marks in its own proprietorship falsely and dishonestly claiming its user since 24.07.2018 and on such baseless ground, he had also filed rectification petition on 29.01.2022 seeking cancellation of registration of Plaintiff's registered trademark.
It was averred further that apart from mapping their fake/counterfeit products on the Plaintiff's products listings, the defendants no. 2, 3 and 4 were also creating fake listing using the Plaintiff's registered trademark "Skysprit" and were selling their own fake/counterfeit products on the said listings with the Plaintiff's registered trademark as well as the other marks being Fedra, Astro, Beston, Beston Life etc. and the defendant no. 1 was stated to be facilitating the defendants no. 2, 3 and 4 in such sales.
After acquiring the knowledge of this fact, the Plaintiff had raised his concern with the defendant no. 1 on 31.01.2022, which was replied by Defendant no. 1 on 01.02.2022.
It was averred further that it was the responsibility of Defendant no. 1 to have stopped other defendants from passing off their counterfeit goods under the Plaintiff's trademark thus infringing his trademark and copyright and the defendant no. 1 was also under a legal obligation not to make monetary gains out of unlawful activities of Defendants no. 2, 3 and 4 and had CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 5 of 49 also to gain accounts of the profits earned by Defendants no. 2 , 3 and 4 by selling counterfeit goods of the Plaintiff.
It was also stated that the Plaintiff had uploaded his warning messages with his contact email and mobile number on the product listings on the website of Defendant no. 1 and on 15.02.2022, he had received an e-mail of a concerned customer , who had ordered for expandable bags made by the Plaintiff under its registered trade mark but was in turn supplied counterfeit very poor quality non-expandable bag bearing the mark 'Fedra' and 'Astro'. The said customer was also stated to have attached the picture of the invoice as well as the product, which was delivered to her along with her e-mail.
Due to the aforesaid acts of the defendants, the Plaintiff was stated to have suffered losses in his business and reputation, which could not have been calculated in terms of money.
3. Since the Plaintiff was having a branch office within the territorial jurisdiction of this court and the products of the defendants were also offered and available for sale on interactive websites within the territorial jurisdiction of this court, hence, this court was stated to have territorial jurisdiction to try and entertain the present lis, which was stated to be commercial in nature and by virtue of Section 134 of the Trade Marks act, 1999 and also u/s 20 of the Code of Civil Procedure of 1908.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 6 of 494. In the light of the aforesaid facts and circumstances, the plaintiff had prayed that the defendant no. 1 through its Directors, partners, principals, employees, agents, representatives and assigns be restrained from mapping/listing on its website the counterfeit goods sold/offered for sales by defendants no. 2, 3 and 4 along with the Plaintiff's goods under its registered trademarks and also a decree for permanent injunction restraining defendants no. 2, 3 and 4, their directors, partners, principals, employees, agents, distributors, franchisees, representatives and assigns from marketing, selling, offering for sale, advertising and/or using in any manner whatsoever in relation to any products, inter alia, any type of bags bearing the Plaintiff's registered trademarks and SKYSPRIT', or any mark/label/ sign/device/ name or domain name, which is identical with/оr deceptively similar to the Plaintiff's aforesaid registered trademarks amounting to infringement of trademarks and copyrights and passing off of Defendants' goods and businesses as the goods and business of the Plaintiff, or in any manner whatsoever, using or incorporating the Plaintiff's trademarks or any other mark/ device/ logo, which is deceptively or confusingly similar to the Plaintiff's aforesaid registered trademarks and from taking benefit of the reputation and goodwill of the Plaintiff in any manner whatsoever;
Plaintiff had also prayed for a decree of mandatory injunction thereby directing the Defendants, theirs directors, partners, distributors, franchisees, representatives and assigns to cancel or surrender or transfer to the Plaintiff, any domain name, incorporating the Plaintiff's aforesaid registered trademarks or CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 7 of 49 any other mark which is identical and/or deceptively similar to the Plaintiff's Trade Marks and to pull down all the offending contents from website of Defendant Nos. 1 from which the Defendant Nos. 2, 3, and 4 are advertising, selling, offering for sale their counterfeit products under the Trademarks of the Plaintiff and an order of delivery up be passed thereby directing the Defendants, their directors, partners, employees, principals, agents, distributors, franchisees, representatives and assigns to hand over to the Plaintiff or its nominated representative all catalogues, brochures, billboards, literature, stationery and any other material whatsoever Plaintiff's including the Trademarks-' "SKYSPIRIT" and advertisements thereof in its possession or under their control bearing the Plaintiff's aforesaid Trademarks or offer for sale of products/services bearing the Plaintiff's trademarks or the Plaintiff's exclusive products or any mark/label/ sign/device/ name, which is identical with or deceptively similar to the Plaintiff's trademarks and a decree in favour of the Plaintiff for recovery of damages to the tune of Rs. 10,00,000/- as punitive and/or compensatory damages for committing the illegal activities of trademark and copyright infringement and passing off & falsification against all the Defendants, their directors, partners, principals, employees, agents, distributors, franchisees, representatives and assigns as the case may be, jointly and severally and an order for rendition of account of profits earned by the Defendants by their impugned illegal trade activities and a decree for the amount so found in favour of the Plaintiff on such rendition of accounts.
5. Summons of this suit were issued to the Defendants, CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 8 of 49 who were duly served with the same and had also appeared to contest the claim of the Plaintiff on its merits and filed their respective written statements on record, wherein they had taken a preliminary objection that plaintiff was guilty of concealment of material facts as well as for not approaching the court with clean hands. No cause of action was stated to have ever arisen in favour of the plaintiff and against the defendants.
Defendant no. 1 in its written statement had taken a preliminary objection that Plaintiff had no cause of action against defendant no. 1, who was stated to be merely a third party, whose market place was utilized by various sellers including the Plaintiff and Defendants no. 2, 3 and 4. It was also stated that this court had no territorial jurisdiction over the subject matter of the suit.
On merits, Defendant no. 1 had claimed itself to be the only facilitator and intermediary third party as defined u/s 2(1) (w) of IT Act and thus entitled to protection u/s 79(1) IT Act itself. It was stated further that Plaintiff was well aware of defendant no. 1's terms of user and infringement policy as per which, only courts at Bangalore were to have exclusive jurisdiction to decide any dispute between defendant no. 1 and any of its service users.
Defendant no. 2 in its written statement filed on record had also challenged the territorial jurisdiction of this court and had claimed that Plaintiff had no cause of action to file this suit against him.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 9 of 49On merits, it was also stated by Defendant no. 2 in his written statement that he was selling his products in retail market at Hyderabad since 24.07.2018 and had also got its products registered with defendant no. 1 on 04.03.2020. The products of Defendant no. 2 i.e. duffle bags got good response from the market and thus Plaintiff had mapped the products of Defendant no. 2 by pasting those products on his seller portal. It was also stated that very cleverly the Plaintiff got its name and logo registered under the name of 'Skyspirit' before the Registrar of Trademarks and as soon as Defendant no. 2 came to know about it, he had filed objections to the registration of Plaintiff's name and logo before the Registrar.
It was also stated that the Plaintiff's application for registration of trademark 'Skyspirit' with device of 'S' registered before the Trademark Registar at Chennai vide application no. 4293732 in class 18, was having status of abandoned user details proposed to be used, whereas the products of Defendants no. 2, 3 and 4 were already using their respective trademarks and the subsequent trademark registration was applied by the Plaintiff in 2021 when he had seen the products of Defendant no. 2 to 4 gaining pace in the market under their supervision due to their quality.
Defendant no. 3 had also challenged the territorial jurisdiction of this court and had stated that Plaintiff had no cause of action to file this suit against the answering defendant, who was stated to be a prior user of the products in question. Rest of the pleas taken by the defendants no. 3 and 4 in their respective CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 10 of 49 written statements were on similar lines and in tune with the pleas already taken by Defendant no. 2 in his written statement.
On merits, except for the paras which were either specifically admitted or essentially or purely constituted a matter of record, rest others were denied by all the defendants as wrong and incorrect.
Plaintiff had also filed its replications to the written statements of defendants no. 2, 3 and 4, wherein the preliminary objections taken by the defendants were denied by him and the contents of plaint were reiterated on merits.
6. After conclusion of the pleadings of the parties, the Ld. Predecessor of this court, vide his order dated 13.12.2022, had framed following issues for determination:
(i) Whether plaintiff is the prior user and proprietor of the Trademark Skyspirit? OPP
(ii) Whether D-2 is the prior user of the Trademark Skysprit? OPD-2
(iii) Whether D-2 to D-4 are passing off the goods of plaintiff? OPP
(iv) Whether the D-1 being an intermediary is exempted from liability under Section 79 (1) of Information Technology Act? OPD-1
(v) Whether the plaintiff is rendition of account of profit earned by the defendants? OPP
(vi) Whether plaintiff is entitled to permanent and CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 11 of 49 mandatory injunction , as prayed? OPP
(vii) Whether the plaintiff is entitled for damages of Rs. 10 lakhs as claimed? If so, how much and from which of the defendant? OPP
(viii) Relief and costs.
7. In order to prove its case by preponderance of probabilities, the Plaintiff namely Sh. Mahboob Alam himself appeared in the witness box and had filed in evidence, his examination-in-chief by way of affidavit Ex. PW1/A, wherein besides reiterating the contents of plaint on solemn affirmation, he had also placed on record the following documents:-
i. Ex. PW1/1(Colly)- The trademark
application bearing no. 4702451 dated
14.10.2020, extract of the journal number 1973 dated 09.11.2020.
ii. Ex. PW1/2 (Colly)- The trademark application bearing no. 5074012, extract of the journal number 2014 dated 23.08.2021.
iii. Ex. PW1/4 - coloured printout 'Sales overview report' w.e.f. 15.02.2021 to 06.02.2022 electronically issued to Plaintiff by Defendant no.
1.
iv. Ex. PW1/5 (Colly)- 'Certificates of Achievement' dated 01.09.2020 and 01.12.2020. v. Ex. PW1/6 - Coloured Print out of Plaintiff's complaint dated 31.01.2022 with regard to CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 12 of 49 counterfeiting by Defendants no. 2 to 4 on Flipkart.
vi. Ex. PW1/7- Coloured Print out of response from Flipkart dated 01.02.2022.
vii. Ex. PW1/8 (Colly)- Extracts/print outs of downloads from social media and website showing popularity and presence of Plaintiff's trademarks and goods sold thereunder.
viii. Ex. PW1/9 (Colly)- Coloured printout of warning message uploaded by Plaintiff on his product's listings on Flipkart.
ix. Ex. PW1/10- Print out of the email dated 15.02.2022 sent to Plaintiff by one of his customers.
x. Ex. PW1/11 (Colly)- Copy of reply dated 15.02.2022 to said email dated 15.02.2022.
xi. Ex. PW1/12 - Copy of 'WhatsApp' message
received by Plaintiff from the number
+918756339814 downloaded by Plaintiff on 19.02.2022 xii. Ex. PW1/13- Print out of screenshots from the websites of Defendant no. 1 showing defendants no. 2, 3 and 4 as more sellers of Plaintiff's goods on products listings with his trademarks.
xiii. Ex. PW1/14- Certificate u/s 65B of IEA.
Although not mentioned in his affidavit, however, PW1 had exhibited legal proceeding certificate as Ex. PW1/3, CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 13 of 49 hence, same cannot be read in evidence. Similarly, coloured printout of online status of trademark application no. 4702451 dated 14.10.2020 for mark- Device of "Skyspirit" in class 18, registered on 16.04.2021 as Ex. P-1 and coloured printout of trademark registration certificate no. 4702451 issued on 16.04.2021 for mark- Device of Skyspirit, in class 18 as Ex. P-4, colour printout of online status of trademark application no. 5074012 dated 04.08.2021 for word mark- Device of Skyspirit, in class 18 as Ex. P5, coloured print out of trademark registration certificate no. 4702451 issued on 06.01.2022 as Ex. P8, Coloured photocopy of certificate dated 10.02.2022 issued to Plaintiff by CA Kata Vikram & Associates for the period from 01.11.2019 to 31.12.20221 as Ex. P-13, coloured printouts of extracts of Plaintiff's product's listings under Plaintiff's trademark on e- market places such as, Flipkart, Meesho, Shoppee and Ajio as Ex. P14, printout of invoice dated 12.02.2022 issued by Defendant no. 2 to Hasan Ali as sent to Plaintiff through WhatsApp message Ex. P-25 and Coloured printout of four pictures of the products sold by D-2 to Hasan Ali as sent to Plaintiff through WhatsApp message as Ex. P26.
Exhibition of Documents was objected to by Ld. Counsel for all the defendants for the following reasons:-
Documents Ex.P1 to Ex.P26 were stated to be only coloured photocopy and neither any original of the same was produced nor any proper declaration was made in that regard.
Even the corresponding email regarding Ex. P10 to CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 14 of 49 to Ex.P12 were also not filed. Ex. P25 and Ex.P26 were stated to be not part of WhatsApp, nor the part of declaration u/o XI rule 6 CPC. Even the original CA certificate, the photocopy of which was Ex.P13 was neither filed nor produced. The print outs were also stated to be not proper as they were not containing the corresponding URL as well as date and time stamp.
Documents Ex.P1 to Ex.P3 and Ex.P5 to Ex.P7 were stated to be not supported by either section 65B certificate of IEA nor any declaration affidavit u/o XI rule 6 CPC.
Even the paras no. 1 to 25 of the affidavit filed in evidence Ex. PW1/A were stated to be liable to be struck down as the suit qua infringement was stayed.
All these objections were duly opposed and rebutted by the Ld. Counsel for Plaintiff and it was stated that since the test of determining infringement and passing off were same, therefore evidence was required to be adduced for passing off which would have over lapped evidence for infringment.
During his cross-examination conducted by Ld. Counsel for the defendant no. 1 on 04.12.2024, PW1 was stated to have dropped out from third year of B.Tech and was running his proprietorship since 2019 in the name of M.S Fashion having GST registration as well. 10-15 employees were stated to be working in his office as well as manufacturing unit. He was stated to be not involved in any other business. Trade mark "Skyspirit" was stated to have been adopted in the year 2019 CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 15 of 49 itself. It was admitted by him that this mark was adopted by him on his own and defendant no. 1 had no role in his adoption of the said trade mark Skyspirit. He was stated to be selling his products on flipkart since 2019 itself when his trade mark was not even registered. Apart from Defendant no. 1, he was also stated to be selling his products on Meesho, Ajio, Shopee and Amazon. It was also admitted by him that he had sold his bags only under the trade mark "skysprit" and was earning around Rs. 1 lacs in a month by selling his products on all the said e-commerce platforms which was more than what he was earning through its own website. It was further admitted by him that he himself had got its products registered on the websites of Defendant no. 1 only after reading and agreeing to its terms and conditions Ex. PW1/D1. He was also stated to be familiar with the working of seller dashboard on flipkart platform and was also using the same regularly. It was also admitted by him that the seller had full control on the listing made on the platform and had all the rights to edit/modify the same and that defendant no. 1 had no role in the listing of any products. It was also admitted by him that defendant no. 1 had charged standard platform fee for every sale/purchase made on its platform from him without there being any change in the rates with the change in volume of sales and it had remained constant.
He had denied the suggestion that defendant no. 1 was not liable to pay any damages to him as there was no cause of action against it or that he had filed a false suit to extort money from defendant No. 1.CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 16 of 49
In his further cross-examination on the very same day conducted on behalf of the remaining defendants by Sh. F. K. Jha, Ld. Counsel, the distance between his house and the houses of Defendants no. 2 to 4 was stated to be around 2-3 kms as he was residing in Vijay Nagar Colony in Hyderabad, whereas Defendants no. 2 to 4 were residing in Asif Nagar or Murad Nagar. It was admitted by him that all of them were permanent residents of Distt., Sitamani, Bihar. His father was settled in Hyderabad for last about 35-40 years, however, he had no knowledge as to since when the Defendants no. 2 to 4 started residing there as they were not on visiting terms with each other. His father might be distantly knowing the defendants but as per his estimation, even he was also not on visiting terms with those defendants. It was admitted by him that defendants no. 2 to 4 were also having the same business of bags, however, he did not know as to since when they were into the said business.
Plaintiff was stated to have never issued any "cease and desist" notice to the defendants no. 2 to 4 at any point of time whatsoever. He had denied the suggestion that VIP Industries had filed objections to the registration application of the Plaintiff's Trademark in Chennai in 2019.
The witness at that stage was confronted with document annexure A1/5 with an application dated 24.02.2023, which was actually the objection filed by VIP Industries and was taken on record as Ex. PW1/D2-1 running into 17 pages. He was stated to have never informed VIP Industries while applying for registration of Trademark for the second time.CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 17 of 49
It was further admitted by him that he had stopped pursuing his first application after filing of objections by VIP Industries but he could not remember the date when he had applied for the second time. He could not remember the date, month and year of his first meeting with his Counsel. He was stated to have received a complaint through Email from one of his customers in Delhi about three years ago, however, he could not remember its exact date and month. Ex. PW1/D2-2 was stated to be his second application for registration of Trademark and he had further admitted the entry at point X on the said document. He had no knowledge if the defendants no. 2 to 4 were selling their products since last 8 years and all that he knew was that they were his competitors.
He had denied the suggestion that he had started selling his products after registration of his Trademark in January 2022. It was admitted by him that before approaching this Court, he had not filed any complaint before the police or any case before any court at Hyderabad or anywhere else or had never issued any legal notice or filed any complaint before the Registrar of Trademark. It was further admitted by him that Defendants no. 2 to 4 had also filed applications for registration of their respective trademarks and it was volunteered by him that their applications were rejected and those papers of rejection might have been placed on record. Suggestion put to him to the contrary of this deposition was denied by him as wrong and incorrect.
In his further cross-examination conducted on the CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 18 of 49 very same day in the post lunch session, he had expressed his lack of knowledge to the facts that as to whether defendants no. 2 to 4 had also filed rectification application qua his device name "Skyspirit" which was pending before the Registrar of Trademark, at Chennai. He had further deposed that he might have filed document pertaining to deposit of GST in respect of his annual turnover of 4.45 Cr. as claimed by him in his plaint. He had denied the suggestion that since he had not deposited any GST, hence, he had not placed any document on record showing its deposition. Same was his reply regarding filing of his Annual Income Tax Return for the aforesaid period. Ex. P9 running from page no. 140 and 146 was stated to be reflecting the number of clicks on his product at the defendant no. 1's website, however, he had admitted that this kind of document could have been easily prepared with the aid of computer. It was also admitted by him that duffle bag and its design manufactured and sold by defendants no. 2 to 4 could have been copied as well. It was volunteered by him that he was also manufacturing duffle bags. He had denied the suggestion that all the parties i.e. Plaintiff as well as Defendants no. 2 to 4 were purchasing the raw material for manufacturing of those bags from the same place. Further he had volunteered that his quality was superior than the defendants' quality, though he had never sent any products of defendants no. 2 to 4 to any lab for checking their product quality. He was stated to have drawn this conclusion regarding the quality of products manufactured by defendants no. 2 to 4 on the basis of a complaint received by him from one of his customers, however, he could not tell his name and address. It was also admitted by him that defendants no. 2 to 4 were selling their bags with the names of CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 19 of 49 "Fedra, Astro and Beston". He had denied the suggestion that pursuant to the objections filed by defendants no. 2 to 4, he had abandoned his first trademark application. It was though admitted by him that Registrar of Trademarks had kept the status of his trademark application as "rectification filed". He was stated to have met his counsel through google search. It was admitted by him that he had received the complaint from a customer on 15.02.2022 from Delhi for the first time. However, he had denied the suggestion that the said complaint was lodged as per legal advice received and acted upon by him as there was no such actual consumer, who had made such complaint. He could not have produced the person before the Court who had made such complaint. Since he was receiving maximum complaints from Delhi, hence, he had filed this suit in Delhi. However, he had not placed the record of all such complaints before the Court. He had denied the suggestion that he had not received any complaint from any customers except one or that he had filed a false case against all the defendants to harass them and to extort money from them. It was also denied by him that no cause of action had ever arisen within the territorial jurisdiction of Delhi or that he had never suffered any losses in his business, hence, was not entitled to any damages.
Other formal suggestions were also denied by him as wrong and incorrect.
8. Thereafter Plaintiff's evidence was closed.
9 In rebuttal defendant no. 1 had examined CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 20 of 49 Sh. Abhishek Jain S/o Sh. Pramod Jain, aged about 33, R/o - G- 17, Krital Halite-II, Bengaluru, working as Legal Counsel-II as well as AR of Defendant No. 1 (wrongly typed as defendant no. 2 in the introductory para of evidence), having its registered office at Buildings Alyssa, Begonia & Clover, Embassy Tech Village, Outer Ring Road, NA Devarabeesanahalli Village, Bengaluru, 560103, Karnataka, who had filed in evidence, his examination- in-chief by way of affidavit Ex. DW1/A reiterating the contents of written statement of defendant no. 1 on solemn affirmation. He had also placed on record the following documents:-
(i) Ex. DW1/1- The terms of use of the Defendant no. 1.
(ii) Ex. DW1/2 and Ex. DW1/3- The latching policy and infringement policy of the Defendant no. 1.
During his cross-examination conducted by Ld Counsel for Plaintiff, DW-1 had stated that he was familiar with the policies of defendant as well as facts of present case. Their policy did not provide for deactivation of latching on feature subsequent to registration of a trademark, hence, he could not admit or deny the suggestion put to him in this regard. He stated that defendant had mandatorily charged the platform fee from its sellers, however, other charges including Logistic services were optional.
He had denied the suggestion that defendant suggested the 'opportunities' under the head of 'listings' on its CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 21 of 49 sellers dashboard. He had further denied the suggestion that defendant had advised its sellers to latch on to the fast selling goods in a particular category and to grow their business by three times. He had also denied the suggestion that defendant had also suggested the selling price of goods to its sellers and he had made false averments in para 7 and 8 of WS filed by defendant. He had denied the suggestion that defendant had taken undue monetary advantage out of infringement of plaintiff's registered trademark or that defendant no. 1 had purposely induced defendants no. 2 to 4 to latch on the Plaintiff's product so as to gain undue monetary advantage. He had also denied the suggestion that as a matter of practice, defendant was liable to deactivate the latching on feature in this case as well.
Other formal suggestions were also denied by him as wrong and incorrect.
10. Defendants no. 2 to 4 had not lead any evidence in their defence, despite availing an opportunity in this regard.
11. Thereafter DE was also closed.
12. I have seen the written submissions filed on record on behalf of the Plaintiff as well as Defendant no. 1.
In his written submissions filed on record by the Plaintiff, it has been stated that plaintiff was the first user and had continuously adopted the trademark "Sky Spirit" for commercial activities.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 22 of 49It was also stated to be having a recognition and successful business running on the website of Defendant no. 1 along with registered trademark in his favour. The adoption of the trademark "Sky Spirit" was stated to be honest and original, which was subsequently adopted by the defendants.
So far as the issue of prior user was concerned, it was stated that the defendant no. 2 was not the prior user of trade mark "Sky Spirit" and had made false and unsustainable claims of prior user.
It was also stated that the said false claim was based on fabricated invoices pertaining to the year 2018, which could have been easily generated by using a third party invoicing software https://vyaparapp.in, which allowed users to easily create and back date the invoices and thus they lacked mandatory statutory details including GST no. etc. It was further stated that defendant no. 2 had obtained GST registration only on 04.03.2020, whereas defendant no. 3 had obtained the same on 01.02.2019, however, still their respective invoices did not reflect the said GST numbers. Even the trademark application filed by the Defendant no. 2 was stated to be a subsequent event to the Plaintiff's user and the rectification petition filed on behalf of the Defendants was stated to be an afterthought.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 23 of 49Defendant no. 2 was further stated to have not proven any market recognition and goodwill in respect of its products.
So far as the issue pertaining to passing off the goods of Plaintiff by Defendants no. 2 to 4 is concerned, it was stated that defendants were knowingly and dishonestly passing off their goods as those of the Plaintiff by unlawfully adopting the Plaintiff's registered trademark "Sky Spirit" and selling counterfeit and deceptively similar products on defendant no. 1's e-commerce platform on the false pretext of being more sellers of Plaintiff's products, which could not have been done by them without aid and support of defendant no. 1.
Plaintiff was stated to be the prior user having goodwill in the market and defendants no. 2 to 4 were stated to be misrepresenting their products to be those of the Plaintiff and thus there was every likelihood of a confusion and actual deception being caused in the minds of prospective customers in purchasing the goods of defendants no. 2 to 4 believing them to be those of the Plaintiff.
It was also stated that defendant no. 1 was not an intermediary as claimed by it and thus could not have claimed any exemption from its liability u/s 79 (1) of the Information Technology Act. As it was stated further to be exercising active control and drawing economic incentives in respect of products sold by sellers through its e-commerce platforms.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 24 of 49It was further stated that defendant no. 1 was also liable for rendition of its accounts to disclose the profits earned by the defendants no. 2 to 4 through it as well as its own revenue generation by those sales.
It was also stated that being prior and registered user of the trademark, the Plaintiff was entitled to the reliefs of permanent and mandatory injunctions as prayed, and since it had also suffered irreparable harm, which could not have been duly compensated in terms of money, thus Plaintiff was entitled to receive damages to the tune of Rs. 10,00,000/- from the defendants jointly as well as severally.
In support of his arguments and contentions, Ld. Counsel for Plaintiff has also relied upon the following citations:
(I) "KRBL Limited Vs. Praveen Kumar Buyyani & Ors.", FAO (Comm) 24/2024, vide order dated 15.01.2025, in which the Division Bench of Hon'ble High Court of Delhi was pleased to hold that an infringement was made out where there was a deceptive, phonetic, visual or idea similarity between the marks and the presence of any one of those elements was sufficient to confuse the consumer.
(ii) "Akash Aggarwal Vs. Flipkart Internet Pvt. Ltd.", CS(Comm) 492/2022 order dated 02.08.2022, in which Hon'ble High Court of Delhi was held that:
"18. The fact that such a feature is made available is not even disputed by Flipkart. In the opinion of this Court, permitting a third-party CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 25 of 49 seller to 'latch on', in this manner, to the Plaintiff's name/mark and product listings is nothing but `riding piggy back' as is known in the traditional passing-off sense. It amounts to taking unfair advantage of the goodwill that resides in the Plaintiff's mark and business. In the context of e-commerce, this Court has no doubt that 'latching on' by unauthorised sellers results in and constitutes 'passing off' as known in the brick and mortar world. It is a mode of encashing upon the reputation of the Plaintiff which he has painstakingly built. The affidavits filed by the Plaintiff also need to be further looked into as this seems to be a recurring difficulty that IP owners appear to be facing.
19. On the basis of the demonstration before this Court today, and the submissions made, prima facie, the Flipkart platform is permitting other third-party sellers to 'latch on' to the best sellers in one particular segment of products, resulting in various third-party sellers misusing the Plaintiff's brand/mark.
20. This Court is satisfied that such a feature cannot be allowed to be used or offered, to the detriment of the owner of the brand or the person who has created the original product. Consent and authorisation of the brand owner and the listing owner would be required before such conduct by any seller is permitted. In the present case, a perusal of the physical products handed over to the Court after purchases having been made from identical third- party sellers, shows that while the products of the Plaintiff have the label 'V Tradition', none of the others have any product tag name. The product design, look and feel, as also, the documents which have been placed on record by the Plaintiff, clearly show that the Flipkart platform has allowed third-party sellers to 'latch on' to the Plaintiff's product listings which were featuring as 'Best Sellers', by CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 26 of 49 way of the 'Opportunities' option. Accordingly, in order to protect the Plaintiff, his brand and the investment which the Plaintiff has made in his mark/name, this Court is of the opinion that any infringing third-party product listings would be liable to be taken down.
21. In the facts and circumstances of the present case, the Plaintiff has made out a prima facie case for the grant of an interim injunction against Flipkart. In the opinion of this Court, the balance of convenience lies in favour of the Plaintiff and irreparable injury would be caused to the Plaintiff if an interim injunction is not granted. Accordingly, till the next date of hearing, Flipkart, and all others acting for and on its behalf, shall stand restrained from allowing any third-party sellers from 'latching on' to the mark 'V Tradition' used by the Plaintiff or the Plaintiff's product listings under the mark/name 'V Tradition', so as to ensure that third-party unauthorised sellers are unable to misuse the name and product listings of the Plaintiff. Thus, Flipkart shall ensure that the 'latching on' feature is disabled qua the mark 'V Tradition' used by the Plaintiff till the next date of hearing. All such third-party sellers shall also stand restrained from 'latching on' to the product listings of the Plaintiff and misusing the product listings and mark/name 'V Tradition', for promoting their products which are not connected to the Plaintiff, in any manner."
(iii) Lastly on the citation of Hon'ble High Court of Delhi, in case titled as "Time Incorporated Vs. Lokesh Srivstava", 2005 (30) PTC 3 (Del), decided on 03.01.2005.
In its written submissions filed on record by Defendant no. 1, it had taken the plea that it was an intermediary CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 27 of 49 as defined u/s 2(1) (w) of the Information Technology Act and thus entitled to exemption u/s 79 (1) of IT Act.
At the stage of final arguments, the Plaintiff was taking adjournments one after the other since 26.05.2025, therefore on 08.07.2025, this Court had heard the arguments advanced by the Defendants no. 1 to 4 and the Plaintiff was afforded an opportunity to file written submissions on record within a week from the said date and thereafter matter was kept for pronouncement of judgment on 17.07.2025.
The aforesaid order was challenged by the Plaintiff before the Hon'ble High Court of Delhi bearing CM(M)-IPD 30/25, however, the said petition was disposed off by Hon'ble High Court of Delhi vide its order date 19.12.2025, wherein the Plaintiff was afforded a fresh opportunity to file additional written submissions before this court, in the light of affidavits filed by the Defendant no. 1 before the Hon'ble High Court of Delhi.
In its fresh written submissions filed on record on 14.01.2026, it was stated by the Plaintiff that in its earlier affidavit filed by defendant no. 1 on 01.12.2025, pursuant to directions dated 18.11.2025 issued by Hon'ble High Court of Delhi, defendant no. 1 had not disclosed the sales made by defendants no. 3 and 4 on the FSNs provided by the plaintiff as well as the revenue generated by the Defendant no. 1 from such sales and the dates on which the defendants no. 3 and 4 had started selling their products on the said FSNs.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 28 of 49It was also stated that the said affidavit only provided the requisite information with regard to Defendants no. 3 and 4, hence, vide order dated 11.12.2025 passed by the Hon'ble High Court of Delhi, defendant no. 1 was further directed to file an additional affidavit to provide information with regard to Defendant no. 2 as well.
In compliance of said order, an additional affidavit was again filed by the Defendant no. 1 on 15.12.2025, in which it was stated that there was no sales data available with the defendant no. 1 regarding the sales made by Defendant no. 2 on its portal.
It was also stated that from the affidavit dated 01.12.2025, filed by the Defendant no. 1 before Hon'ble High Court of Delhi, it emerged that Defendant no. 1 had admitted that defendants no. 3 and 4 had effected the sales as "more sellers"
from the Plaintiff's FSN (Flipkart Serial Number), which was stated to be unique to each specific product listing.
As per the entries at Sr. No. 38 and 118 in annexure B of the said affidavit, it revealed that Defendant no. 3 had generated sales amounting to Rs. 10548.21/- (Ten Thousand Five Hundred Forty Eight Rupees and twenty one paise only) by latching on as more sellers of the Plaintiff's product and the Defendant no.1's commission on the said sales amounted to Rs. 2,028.66/- and as per entry no. 120 in Annexure B of the said affidavit, defendant no. 4 had generated the sales amounting to Rs. 7,84,015.94/-, and the Defendant no. 1's commission on the CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 29 of 49 said sales amounted to Rs. 1,95,786.09/-. Therefore, by falsely portraying themselves as "more sellers" of Plaintiff's products, defendants no. 3 and 4, from the very same product listings as created by the Plaintiff had sold counterfeit products to the Plaintiff's customers against the orders placed by such customers for Plaintiff's product and made unlawful gains for themselves at the cost of business opportunity of the Plaintiff.
It was also stated that Defendant no. 3 had started selling his products on the platform of Defendant no. 1 since 05.02.2022 and defendant no. 4 was already selling his products since 01.12.2021 and thus they had made sales worth crores. Reliance was also placed in this regard on para 6 of the plaint.
It was also stated that from the affidavit dated 01.12.2025 filed by Defendant no. 1, it was also clearly established that it was not a mere passive intermediary and had full control over FSNs, sellers, duration of sales and revenue earned and had gained profits from the sale of counterfeit goods made by other defendants.
Rest the written submissions already discussed above were reiterated by the Plaintiff in its fresh written submission filed on record along with placing reliance on the same citations as were filed earlier by it on record and discussed above.
In rebuttal, it was stated by Ld. Counsel for Defendant no. 1 that judgment of "Christian Louboutin Vs. CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 30 of 49 Nakul Bajaj, CS (Comm) 344/2018, had already been overruled by another judgment of Hon'ble High Court of Delhi in case titled as "Amazon Seller Services Pvt. Ltd. Vs. Amway India Enterprises Pvt. Ltd. and Others" 2020 SCC OnLine Del 454:
(2020) 267 DLT 228 (DB): (2020) 81 PTC 399 (DB), wherein Hon'ble High Court was pleased to hold as under:
"...136. Turning now to the third issue as to whether Amazon, Cloudtail and Snapdeal were in fact intermediaries within the meaning of Section 79 read with 2(1)(w) of the IT Act, the learned Single Judge has extensively examined the incidental services provided by these platforms in the form of packaging and entering into fresh warranties. This aspect has already been discussed at length in the decision in Kapil Wadhwa v. Samsung Electronics Co. Ltd. (supra) wherein it was held that the mere fact that there could be a change in the condition of the warranty of a certain product would not attract Section 30(4) of the TM Act, and equally would not deprive the intermediaries from the option of invoking Section 79 of the IT Act in their defence.
137. The learned Single Judge appears to have misinterpreted Section 79 of the IT Act in concluding that is restricted to 'passive' Intermediaries. Section 79 of the IT Act reads as under:
"79. Exemption from liability of intermediary in certain cases:
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-
party information, data, or communication link made available or hosted by him.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 31 of 49(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation-For the purposes of this section, the expression "third party information" means any information dealt with by intermediary in his capacity as an intermediary."
138. In terms of Section 79 of the IT Act, there does not appear to be any distinction CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 32 of 49 between passive and active intermediaries so far as the availability of the safe harbour provisions are concerned. In terms of Section 79, an intermediary shall not be liable for any third-party information, data or communication link made available or posted by it, as long as it complies with Sections 79(2) or (3) of the IT Act.
139. The exemption under Section 79(1) of the IT Act from liability applies when the intermediaries fulfil the criteria laid down in either Section 79(2)(a) or Section 79(2)(b), and Section 79(2)(c) of the IT Act. Where the intermediary merely provides access, it has to comply with Section 79(2)(a), whereas in instances where it provides services in addition to access, it has to comply with Section 79(2)(b) of the IT Act.
140. In Amazon's case, as indeed in Cloudtail's and Snapdeal's, since they provide services in addition to access, they have to show compliance with Section 79(2)(b) of the IT Act. In other words, they have to show that they (i) do not initiate the transmission (ii) do not select the receiver of the transmission and (iii) do not select or modify the information contained in the transmission. The case of these Defendants is as follows. Where there is a potential customer who is accessing the site, so long as it is he who clicks the button, it is the customer who is initiating the transmission. Amazon, Snapdeal or Cloudtail do not 'select' the receiver of the transmission, which is the buyer. They do not modify the information contained in the transmission, such as the choice of the product, the number of units, and so forth. For example, if a potential buyer goes to Amazon's website and selects a book sold by a seller whose name is indicated on the site, as long as this entire transaction is not controlled by Amazon and the choices, of which the transaction consists, are made solely by the customer, such as, say, the decision to purchase three copies of the book, and these choices are not altered by CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 33 of 49 Amazon, the requirements of Section 79(2)(b) of the IT Act would stand fulfilled.
141. Given the disputed questions of fact that emerge from the pleadings in the suit, it is obvious that the issue of whether an entity is an intermediary or not can be decided only after a trial. In this context, it should be noted that the reasoning of the learned Single Judge in Christian Louboutin SAS v. Nakul Bajaj (supra) was disapproved of by a Division Bench of this Court in its judgment dated 4th April. 2019 in RFA (OS) (COMM) 1/2019 (Clues Network Pvt. Ltd. v.
L'Oréal), wherein the Court set aside an order of the learned Single Judge, which relied, inter alia, on Christian Louboutin SAS v. Nakul Bajaj (supra). Indeed, the learned Single Judge appears to have erred in distinguishing the decision in Myspace Inc. v. Super Cassettes Industries Ltd. (supra), where the Division Bench held that Section 79 of the IT Act is not an "enforceable provision", but merely provides "affirmative defence" to entities which fulfil the criteria set forth therein. It was observed by the DB in the said case as under:
"51... The true intent of Section 79 is to ensure that in terms of globally accepted standards of intermediary liabilities and to further digital trade and economy, an intermediary is granted certain protections. Section 79 is neither an enforcement provision nor does it list out any penal consequences for non-compliance. It sets up a scheme where intermediaries have to follow certain minimum standards to avoid liability; it provides for an affirmative defence and not a blanket immunity from liability."
142. Section 79 of the IT Act is a safe harbour for online market places, limiting their liability for third party information posted on their systems. It is to ensure that the liability for non- compliance and/or violation of law by a third CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 34 of 49 party, i.e. the seller, is not fastened on the online market place. In holding that Amazon is in fact not an intermediary, the learned Single Judge has obviated the need for any evidence to be led in the matter.
143. During the course of arguments before this Court, the Respondents/Plaintiffs were not at all clear as to whether, according to them, Amazon was in fact an intermediary or not. In any event, the alternative arguments, claiming that Amazon is not an intermediary, appear to be riddled with inconsistencies. If, in fact, Amazon is not an intermediary, the question of Amazon having to comply with Section 79 (2) of the IT Act would not arise at all. Clearly, the Respondents seem to be unsure as to what their stand ought to be. As a result, the burden of proof has shifted unfairly onto the Defendants to show that they have complied with the requirements of Section 79 of the IT Act, when in fact the Plaintiffs have to first show that there had been a violation of any of their rights due to the Defendants' activities before the "affirmative defence" of Section 79 could be sought to be invoked. Therefore, Section 79 of the IT Act has been, contrary to the judgment in Myspace Inc. v. Super Cassettes Industries Ltd. (supra), sought to be enforced by the Plaintiffs positively, rather than be deployed as "affirmative defence."
144. There is prima facie merit in the contention of the Appellants that the value-added services provided by them as online market places, as listed out by the learned Single Judge, do not dilute the safe harbour granted to them under Section 79 of the IT Act. Section 2(1) (w) of the IT Act does envisage that such intermediaries could provide value-added services to third party sellers. This interpretation is sought to be buttressed by Press Note No. 2 issued by the Ministry of Commerce and Industry. In particular, CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 35 of 49 reference is made to para 5.2.15.2.4(vi), which reads as under:
"In marketplace model goods/services made available for sale electronically on website should clearly provide name, address and other contact details of the seller, post sales, delivery of goods to the customers and customer satisfaction will be responsibility of the seller."
145. There was no occasion for the learned Single Judge to have, at the stage of considering applications for interim injunction, returned a conclusive finding that Amazon is "a massive facilitator" and plays an "active role in the sales process." These are too sweeping and definitive a set of findings which have to be properly rendered at the conclusion of the trial. Here again there is prima facie merit in Amazon's contention that merely because it packs and ships the product does not mean that the sale is consummated by Amazon. Amazon contends that such an interpretation runs afoul of both Section 79 of the IT Act and the policy laid down by the Press Note No. 2, a portion of which have been extracted hereinabove. Amazon explains that when the sale of product is "fulfilled by Amazon", all it means is that Amazon guarantees the quality of the product by rendering logistical support services, which include storage, packaging and delivery. These are again matters that would have to be tested at the trial.
146. Under Section 79(2) (c) of the IT Act, the obligation of the intermediary is that, in terms of the Intermediary Guidelines, it publishes its policies for the information and convenience of its users. The enforcement of such a policy is another matter. Clause 17 of Amazon's policy prohibits sale, on its platform, of "unauthorised" products. This Clause 17 was put forth with the object of enabling Amazon to refuse listing of a product where, for instance, it originates from a country CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 36 of 49 that does not follow international exhaustion. Amazon seeks to point out that this does not apply to India where the principle of international exhaustion is in fact followed. It is contended that Clause 17 cannot be interpreted to empower Amway to seek restrictions on the sale of its products on Amazon's online platform.
147. The Supreme Court in Shreya Singhal (supra) held, inter alia, that the obligation of an intermediary to remove content under Section 79(3)(b) of the IT Act arises only if there is a Court order or a notification from a government agency on the grounds mentioned under Article 19(2) of the Constitution. Amazon points out that it did not receive any such Court order from Amwav in support of its allegations. The letter of the FSSAI dated 9th April, 2018 was not a notification by an appropriate government agency and did not conform to the grounds enumerated in Article 19(2) of the Constitution.
148. Therefore, on the third issue also, this Court is unable to concur with the learned Single Judge that Amazon, Snapdeal and Cloudtail would have to meet the diligence requirement, failing which the benefit of the safe harbour provision i.e. Section 79 of the IT Act would not be available to them."
Subsequently, the Division Bench of Hon'ble High Court of Delhi had reaffirmed the said principles in case titled as "Indiamart Intermesh Ltd. Vs Puma Se", in FAO (OS) (COMM) 6/2024, decided on 02.06.2025:
68. In a brick and mortar world, the commercial platform where goods are sold and purchased would be possibly be akin to a 'Hyper Market'; where different shelves / spaces are allocated to different sellers for displaying of their products for the purpose of selling the same. If the CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 37 of 49 market allocate space or shelf space, under a sign board of a registered trademark brand, it would have a higher responsibility to ensure that the spaces, which is occupied under the banner of a particular brand or trademark does not display or offer for sale any counterfeit goods. However, when we consider the listing in the Yellow Pages Directory, we note that the responsibility of the publisher in listing out the contact details or businesses under various categories of products and services, is significantly different. The emphasis of Yellow Pages Directory would perhaps be more to ensure that the telephone number as listed is correct one rather than to examine the goods and services dealt with by the businesses listed in the directory.
.....
77. The learned Single Judge prima facie found that option of including the word PUMA in the description of the goods is to aid and abet infringement of a trade mark. We are unable to accept that any such prima facie conclusion could have been drawn only on the basis that IIL presents a dropdown menu for specifying the description of the products that sellers may wish to specify. This would, of course, be coupled with search feature where a buyer looking for a Puma Product would be shown the listings of all sellers that had opted to describe their goods using the trade mark PUMA. This conclusion, in our view, ignores the nature of IIL's B2B platform Indiamart. The learned Single Judge has proceeded on the basis that Indiamart is an e- commerce site on which goods and services are bought and sold. However, this assumption is erroneous. Indiamart is not an interactive website on which buyer can place purchase orders for supply by the supplier. Indiamart renders listing services where buyers can get in touch with sellers. They may request for price and terms of supply online, which are transmitted electronically CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 38 of 49 to the Seller. The negotiations and the transaction of sale and purchase of the products, is consummated between the purchaser and the seller directly. Indiamart has no role to play in the said transaction. As noticed above, the nature of services offered by Indiamart are akin to Yellow Pages Directory. It provides a platform where sellers enlist their details for the purpose of buyers to access them. Like in Yellow Pages Directory, the publisher merely creates an index of the categories of goods and services and distributes the directory. It is for various suppliers to determine the category in which their goods and services fall. The publisher of Yellow Pages Directory would neither determine the genuineness of the products offered by any of the entities / businesses listed in the Yellow Pages nor determine whether the person selecting the category of its goods/services has correctly described the goods or has chosen the appropriate category. It is for the seller to choose as to which category its goods fall under.
..........
79. It may be in the interest of IIL that a large number of sellers use their services as the same may enhance the efficacy of its platform. The fact that IIL may have a commercial interest in expanding the base of its listing does not lead to the conclusion that a drop-down menu offering an option to describe the products as Puma Products is designed to aid and abet infringement. Prima facie, we are unable to read any intent on the part of IIL to encourage listing of counterfeit Puma Products by offering the sellers an option to choose a specific description of their products/services by indicating the brand name associated with their product/services.
........
82. In terms of Section 79(1) of the IT Act, an intermediary would not be liable for any third-
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 39 of 49party information, data, or communication link made available or hosted by him. By virtue of Section 79(1) of the IT Act, IIL being an intermediary cannot be held liable for third party information listed on its platform, Indiamart. However, applicability of the protection of Section 79(1) of the IT Act is subject to sub- sections (2) and (3) of Section 79 of the Act. The protection under Section 79 of the IT Act is available only if the provisions of Sub-section (2) of Section 79 of the IT Act are satisfied. In the present case, the learned Single Judge has held that neither of the three conditions, as specified in Clauses (a), (b) and (c) of Section 79(2) of the IT Act, are satisfied. Therefore, the protection of Section 79(1) of the IT Act is not available to IIL."
Reliance has also been placed by the Defendant no. 1 on the following citations:-
i. "Shreya Singhal Vs. Union of India", (2015) 5 SCC 1.
ii. "Myspace Inc. V. Super Cassettes Industries Ltd.," 2016 SCC OnLine Del 6382.
iii. "Kent RO Systems Ltd. & Anr. Vs. Amit Kotak & Ors.", 2017 SCC OnLine Del 7201.
iv. "Star India (P) Ltd. Vs. Yodesiserial. Su & Ors.", 2021 SCC OnLine Del 5615 v. "Amazon Seller Services Pvt. Ltd. Vs. Amway India Enterprises Pvt. Ltd.", 2020 SCC OnLine Del 454 vi. "Samridhi Enterprises Vs. Flipkart Internet pvt.
Ltd. & Ors.", CS (COMM) 63/2023, Delhi High Court, order dated 01.03.2023.
vii. "Indian Performing Right Society Ltd. Vs. Debashis Patnaik and Others", 2007 SCC OnLine Del 2037 viii. "Kabushiki Kaisha Toshiba Vs. Tosiba Appliances Co.", 2024 SCC OnLine Del 5594. ix. "Guillernio Horacio Pino Vs. Blissbury Care Pvt.
Ltd. & Anr.", CS (COMM) 741/2022, Delhi High Court vide order dated 16.03.2023 CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 40 of 49 x. "Metis Learning Solutions Private Limited Vs. Flipkart India Private Limited & Ors.", CS (COMM) 393/2022, Delhi High Court vide order dated 17.03.2025 xi. "Gujarat Cooperative Milk Marketing Federation Limited & Anr. Vs. Amul Electromech Private Limited & Ors.", CS(COMM) 1/2023, Delhi High Court vide order dated 25.01.2024 xii. "M/s Avro India Ltd. And Anr. Vs. Surya Moulded Furniture and Ors.", CS(COMM) 662/2024, Ld. Joint Registrar, Delhi High Court vide order dated 26.03.2025 xiii. "Sirona Hygiene Private Limited Vs. Parulben Navnath Chothani Trading as Shiv Enterprise & Ors.", CS (COMM) 260/2022., Ld. Joint Registrar, Delhi High Court vide order dated 09.10.2024.
Furthermore, it has been submitted and argued before me by Ms. Surbhi Pandey, Ld. Counsel representing the Defendant no. 1 that from the cross-examination of Plaintiff, it had been established that defendant no. 1 was not deriving any profits except charging platform fee and being an intermediary, the defendant no. 1 was also entitled to the protection as it had never abated or inspired or induced the sale of infringing material through its e-commerce platform, hence, it was not liable to pay any damages to the Plaintiff.
On behalf of defendants no. 2 to 4, it was argued by Sh. F.K Jha, Ld. Counsel that the courts in Delhi had no territorial jurisdiction to try and entertain the present suit. It was further stated that though Plaintiff had claimed the use of its trademark since 2019 but application for registration of the trademark was filed only in the 2022, in which it was mentioned that Plaintiff had intended and proposed to use the said trademarks. It was also CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 41 of 49 argued that no customer from Delhi was examined by the Plaintiff to substantiate his claim that the defendants were indulging in selling counterfeit goods to its customers in Delhi.
It was further submitted by Sh. F.K. Jha that though from the screenshots placed on the record by the Plaintiff, the address of proposed customer, who had allegedly written the e- mail dated 15.02.2022 is reflected as that of Lado Sarai and despite having complete knowledge about the residence of the said customer as well as having her e-mail id, the failure of Plaintiff to produce the said witness, who could have deposed honestly before the court shows that it was a planted e-mail obtained by the Plaintiff to somehow vest territorial jurisdiction in the courts at Delhi.
It was also submitted by Ld. Counsel for Defendants no. 2 to 4 that though defendants no. 2 to 4 had chosen not to lead any evidence in support of their claims, however, from the documents placed by Defendant no. 2 along with his written statement made it amply clear that defendant no. 2 was selling the products in the name of "Sky Spirit" since 2018 and the Plaintiff in his affidavit of admission/denial of documents of defendant no. 2 filed along with replication had simply denied the same being forged and fabricated without mentioning the manner and mode of forgery and fabrication.
Furthermore, it has been submitted that there is no evidence adduced by the Plaintiff on record to show that defendant no. 2 had created the aforesaid invoices by using the CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 42 of 49 said third party app or that Plaintiff had actually suffered any damages due to business activities carried out by the defendants no. 2 to 4.
13. In view of these submission and rival submissions made before me by the respective Ld. Counsels, my issue wise findings are as under:
Issue No. 1. Whether plaintiff is the prior user and proprietor of the Trademark "Skyspirit"? OPP The Onus to prove this issue was upon the plaintiff and from the applications made by him regarding registration of trademark and device mark, it is absolutely clear that Plaintiff had shown the same as "proposed to be used" category and had failed to produce any invoice on record to show that he was using this trademark since 2019 and as observed earlier in my discussion above, there is an invoice of defendant no. 2 pertaining to year 2018, which admittedly preceded the business activities of the Plaintiff, hence, I have no hesitation in holding that plaintiff had miserably failed to discharge the onus of proving his prior user of the trademark though subsequently, he had become the registered proprietor of the said trademark. However, it is also the settled preposition of law by virtue of Section 34 of the Trade Marks Act, 1999, that a prior and continuous user of a particular trademark has an immunity against the registered owner of the said trademark.
Issue is thus answered in negative and decided in favour of the defendants and against the Plaintiff, holding that CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 43 of 49 Plaintiff was not the prior user of the trademark "Sky Spirit"
though he might have been a registered owner thereof at a later stage.
Issue No. 2. Whether D-2 is the prior user of the Trademark "Skysprit"? OPD-2 Onus to prove this issue was upon the Defendant no. 2, who had failed to adduce any evidence to discharge the same, however, it is not necessary for a party to step in the witness box to discharge the onus and it could be done even through cross- examination of the witnesses of the opposite party.
From the cross-examination of the Plaintiff's witness by Ld. Counsel for Defendant no. 2 to 4, it becomes amply clear that in his registration applications, Plaintiff had shown himself as proposed user of the trademark as well as the word mark and his said registration for the first time was also opposed by the VIP industries after which he had abandoned the said trademark registration application and later on, had applied afresh for registration of the same trademark, in respect of which rectification applications were also filed by the Defendants.
From the invoices placed on record by the defendant no. 2 pertaining to the year 2018, which were just denied by the Plaintiff for the sake of denial as forged and fabricated without disclosing any manner and mode of alleged forgery or fabrication, hence, same could not be considered as a proper denial, in view of the provisions of order XI rule 4 (3) CPC, which provided that each party shall set out reasons for denying a CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 44 of 49 document under any of the grounds and a bare and unsupported denial shall not be deemed to be a proper denial of a document and proof of such documents may then be also dispensed with at the discretion of the court.
In view of the aforesaid legal provision, although the said invoice was neither tendered nor proved as per law, however, since, even the plaintiff had also failed to assign a cogent reason for the denial of the same, hence, I deem it appropriate to dispense with the proof of such invoice pertaining to defendant no. 2 in terms of aforesaid cited legal provision of order XI rule 4 (3) CPC.
Therefore, I have no hesitation in holding that defendant no. 2 had successfully discharged the onus of this issue to establish his continuous prior user of the trademark. Hence, this issue is accordingly answered in affirmative and decided in favour of the defendant no. 2 and against the Plaintiff, holding the defendant no. 2 as the prior user of the mark "Sky Spirit".
Issue no. 3 Whether D-2 to D-4 are passing off the goods of plaintiff? OPP The onus to prove this issue was upon the Plaintiff. Admittedly in the present case, none of the defendants is either using the trademark of Plaintiff or its logo, rather they have been dealing in the same category of products i.e. bags but with different names of Astro, Fedra and Beston, which, in no manner whatsoever could be held to be either visually or phonetically similar to that of the Plaintiff's trademark or device.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 45 of 49Furthermore, though it was observed by Hon'ble Division Bench of High Court of Delhi in "KRBL Limited Vs. Praveen Kumar Buyyani & Ors.", FAO (Comm) 24/2024, that even a similar idea would be considered as deceptive, however, a person cannot be restricted to or restrained from carrying on any business activity of his own choice including dealing in manufacturing and marketing of the bags of different classes, sizes and designs, which were manufactured and sold, not only by the Plaintiff, but also, by the defendants such as duffle bags as was also admitted by the Plaintiff during his cross-examination.
In view of this fact, I have no hesitation in holding that the Plaintiff had failed to show that defendants no. 2 to 4 by manufacturing the bags under different brand names had stolen any original idea of the Plaintiff and thus were passing off their goods as those of Plaintiff to deceive the public at large and making it to believe that it was purchasing the goods from the defendants as those of Plaintiff. The issue is accordingly answered in negative and decided in favour of defendants no. 2 to 4 and against the Plaintiff.
Issue No. 4 Whether the D-1 being an intermediary is exempted from liability under Section 79 (1) of Information Technology Act? OPD-1 The onus to prove this issue was upon the Defendant no. 1. It has been admitted by Plaintiff during his cross- examination that the seller had full control on the listings made on the platform of defendant no. 1 and thus had all the rights to CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 46 of 49 edit/modify the listings. It was further admitted by him that defendant no. 1 had no role and control in the listings of any product and that the defendant no. 1 used to charge only standard platform fee for every sale/purchase made on its platform, which remained unchanged/constant even after change in the volume of sales.
This admission on the part of the Plaintiff per se is sufficient to hold that defendant no. 1, apart from charging the standard platform fee as per its user policy had no further role in affecting or influencing the sales etc. of any particular brand or class of goods on its commercial platform and thus I have no hesitation in holding that defendant no. 1 was an intermediary and thus was entitled to exemption from the liability u/s 79 (1) of the Information Technology Act. In this regard, I am also supported by the judgments of our own Hon'ble High Court as cited (Supra), while deciding issue no. 1 above. The issue is accordingly answered in affirmative and decided in favour of the defendant no. 1 and against the Plaintiff.
Issue no. 5 Whether the plaintiff is rendition of account of profit earned by the defendants? OPP The onus to prove this issue was again upon the Plaintiff and as held above in the previous issues, once the defendants were selling their own products with different names and specifications and earning their livelihood and in no way had violated, passed off or infringed the trademark of the Plaintiff, hence, Plaintiff had failed to prove his entitlement for rendition of accounts from the defendants. Issue is accordingly answered in CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 47 of 49 negative and decided in favour of the Defendants and against the Plaintiff.
Issue No. 6 Whether plaintiff is entitled to permanent and mandatory injunction , as prayed? OPP Onus to prove this issue was again upon the Plaintiff and as held above, he had miserably failed to make out a prime facie case in his favour entitling him to a decree for permanent and mandatory injunction being passed in his favour and against the defendants as they might be manufacturing and dealing with the goods in the same class in which Plaintiff is also dealing. However, their goods are sold with different brand names and logos having no visual or phonetic similarity of any kind whatsoever with that of the trademark or logo of the Plaintiff. The issue is accordingly answered in negative and decided in favour of the defendants and against the Plaintiff.
Issue no. 7 Whether the plaintiff is entitled for damages of Rs. 10 lakhs as claimed? If so, how much and from which of the defendant? OPP The onus to prove this issue was again upon the Plaintiff, who had miserably failed to adduce any evidence to show that he had actually suffered any losses in business from the alleged acts/omissions of the defendants, hence, Plaintiff is not held entitled to claim any damages from either of the defendants, the issue is accordingly answered in negative and decided in favour of the defendants and against the Plaintiff. Issue no. 8 Relief and costs.
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 48 of 4914. In view of my findings given to all the issues above, the suit of the Plaintiff is hereby dismissed with costs. Decree sheet be drawn accordingly.
15. File be consigned to record room after completion of necessary legal formalities in this regard.
ANNOUNCED IN THE OPEN COURT
DATED:28.01.2026 LOKESH Digitally signed
by LOKESH
KUMAR KUMAR SHARMA
Date: 2026.01.28
SHARMA 15:52:22 +0530
(Lokesh Kumar Sharma)
District Judge (Commercial Court)-05
South/Saket/New Delhi
CS (COMM) 181/22 Mr. Mahboob Alam Vs. Flipkart Internet Pvt. Ltd. And Ors Page 49 of 49