Imagine Marketing Limited vs Ashok Kumar And Ors on 11 January, 2024

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Delhi High Court - Orders

Imagine Marketing Limited vs Ashok Kumar And Ors on 11 January, 2024

Bench: Sanjeev Narula

$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 946/2023
IMAGINE MARKETING LIMITED ..... Plaintiff
Through: Mr. Arjun Krishnan, Mr. Ankur Singh
and Mr. Abhijeet Singh, Advocates.

versus

ASHOK KUMAR AND ORS. ..... Defendants
Through: Mr. Mrinal Ojha, Mr. Debarshi Datta,
Mr. Anand Raja and Ms. Tanya
Chaudhary, Advocates for
GoDaddy.Com LLC.

CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER

% 11.01.2024 I.A. 713/2024 (under Order VI Rule 17 r/w Section 151 of CPC for amendment of pleadings)

1. Summons have not been issued in the suit as yet. Plaintiff has filed the present application seeking to introduce certain amendments relating to particulars and description of Defendants through an amended memo of parties and amended plaint.

2. For the grounds and reasons stated therein, the application is allowed. Amended plaint along with amended memo of parties are taken on record. Registry is directed to place the same in the correct portfolio.

3. Disposed of.

I.A. 26164/2023(under Section 12A of the Commercial Courts Act, 2015 r/w CS(COMM) 946/2023 Page 1 of 6 This is a digitally signed order.

4. As the present suit contemplates urgent interim relief, in light of the judgment of Supreme Court in Yamini Manohar v. T.K.D. Krithi,1 exemption from attempting pre-institution mediation is granted.

5. Disposed of.

I.A. 26165/2023(u/S 151 of CPC seeking exemption)

6. The Plaintiff seeks exemption from serving statutory notice under Section 80 of the Code of Civil Procedure, 1908 ("CPC") to Defendant Nos. 275 (Department of Telecommunication), 276 (Ministry of Electronics and Information Technology) and 277 (National Internet Exchange of India) (as per the original memo of parties), as no immediate relief is sought against these parties.

7. Issue notice to aforenoted Defendants, by all permissible modes, upon filing of process fee, returnable on the next date of hearing.

CS(COMM) 946/2023

8. Let the plaint be registered as a suit.

9. Issue summons. Mr. Mrinal Ojha, Advocate, accepts summons on behalf of Defendant No. 234 (GoDaddy.com LLC) (as per amended memo of parties). Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement(s), the Defendants shall also file 1 2023 SCC OnLine SC 1382.

CS(COMM) 946/2023 Page 2 of 6

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 07:02:59 affidavit(s) of admission/denial of the documents of the Plaintiff, without which the written statement(s) shall not be taken on record.

10. Liberty is given to the Plaintiff to file replication(s) within 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the Plaintiff, affidavit(s) of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

11. List before the Joint Registrar for marking of exhibits on 14th March, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

12. List before Court for framing of issues thereafter.

I.A. 26163/2023(u/O XXXIX Rules 1 and 2 of CPC)

13. Counsel for Plaintiff states that as of now, he is pressing for relief only against Defendants No. 8 <www.boathubs.com>, 54 <www.boatlive.in>, 159 <www.doatdastistayl.com>, 161 <www.zcob.in> and 176 <www.limiteddeal.in> as per amended memo of parties. The case set out by Plaintiff is as follows:

(a) Plaintiff company is engaged in the business of importing, trading, manufacturing, selling, distribution, design and development of consumer electronic and lifestyle products such as wired/wireless earphones, Bluetooth speakers, power-banks, smart watches, trimmers, under the brand name of "boat". The Plaintiff is the proprietor of / "boAt" trademarks registered under Class 9, 14 and 35. The Plaintiff therefore has the exclusive rights of use of the said trademarks. Plaintiff submits that its annual CS(COMM) 946/2023 Page 3 of 6 This is a digitally signed order.

(b) Plaintiff, through its domain name/website i.e., <www.boat-

lifestyle.com>, offers a wide range of consumer electronics and services. Plaintiff exclusively offers its products and services under the brand name and trademark "boAt" for sale only through its authorized and recognised website, and authorized e-commerce platforms such as Amazon, Flipkart, Nykaa, Myntra, Blinkit, Tata Cliq, Snapdeal, First Cry, Shop Disney, Cred, Snapmint, etc. Plaintiff submits that it has not authorized any other website/domain name/portal for the said purpose, and every other channel of distribution of its products is unauthorised and illegal.

(c) The Plaintiff is principally aggrieved by the following illegal actions on the part of the Defendants: (i) infringement of Plaintiff's trademark "boAt" by registration and use of deceptively similar domain names per se; and (ii) infringement of Plaintiff's trademarks by fake and unauthorised website which either sell spurious/counterfeit products or are simply scam/fraudulent websites where fake product listings are made without any actual underlying product.

(d) The Defendants' fake websites are live for a brief period, and Defendants employ tools such as "Google AdSense" to promote the website CS(COMM) 946/2023 Page 4 of 6 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 07:03:00 on search engines. URLs and domain names are deceptively similar to the Plaintiff's brand and therefore, customers visit these websites while assuming them to be genuine and authorised e-commerce platforms. Products are listed at heavily discounted prices to lure the customer in making the purchase, and generally, only pre-payment options through credit/debit cards, UPI, etc. are available to complete the purchase, instead of cash on delivery. Customers are thus trapped in paying the entire price before receiving the goods or verifying the genuineness of the product, and they end up with fake counterfeit products or with no product at all. This causes an obvious loss to the victim as well as loss of revenue and irreparable harm to the goodwill of the Plaintiff.

14. In light of the above, the Court is of the view that Plaintiff has made out a prima facie case for grant of injunction. If an injunction is not granted at this stage, irreparable harm would be caused to the Plaintiff. Balance of convenience lies in the favour of Plaintiff. Accordingly, Defendants No. 8 <www.boathubs.com>, 54 <www.boatlive.in>, 159 <www.doatdastistayl.com>, 161 <www.zcob.in> and 176 <www.limiteddeal.in> (as per amended memo of parties) are restrained in terms of prayers (a)-(d) of the present application, and are restricted from operating any domain names/websites which use identical or deceptively similar marks to that of the Plaintiff's registered marks and its other formative marks or goods/services, as described in the application, in any manner or form.

15. Defendant Nos. 233-240 (DNRs) are directed to lock and suspend the domain names specified in Paragraph 14 of this Order, which have been registered through them, within ten days of receiving this Order. Further, for CS(COMM) 946/2023 Page 5 of 6 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 07:03:00 the respective domain names registered through them, they shall also furnish the details of registrants including KYC details available with them. The same be filed before this Court, in a sealed cover, within two weeks from today.

16. Compliance with Order XXXIX Rule 3 of CPC be done with a period of four weeks.

17. List before the Court on 16th May, 2024.

SANJEEV NARULA, J JANUARY 11, 2024 d.negi CS(COMM) 946/2023 Page 6 of 6 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 07:03:00

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Delhi High Court - Orders