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Lifestyle Equities Cv & Anr vs Amazon Technologies Inc. & Ors on 12 October, 2020

Author: Mukta Gupta

Bench: Mukta Gupta

                                      $~3
                                      *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      +     CS(COMM) 443/2020
                                            LIFESTYLE EQUITIES CV & ANR.                   ..... Plaintiff
                                                     Represented by: Mr.Sidhant Goel, Mr.Mohit Goel,
                                                                     Mr.Akshay Ajayakumar and
                                                                     Mr.Karmanya Dev Sharma,
                                                                     Advocates.

                                                               versus

                                            AMAZON TECHNOLOGIES INC. & ORS.           .... Defendant
                                                    Represented by: Mr.Nischal Anand, Mr.Praful Shukla
                                                                    and Ms.Yamini Jaswal, Advocate for
                                                                    defendant No.2.
                                                                    Mr.Saikrishna Rajagopal, Mr.Sidharth
                                                                    Chopra, Ms.Sneha Jain, Ms.Savani
                                                                    Endlaw and Mr.Devvrat Joshi,
                                                                    Advocates for defendant No.3.
                                            CORAM:
                                            HON'BLE MS. JUSTICE MUKTA GUPTA
                                                               ORDER

% 12.10.2020 The hearing has been conducted through Video Conferencing. I.A. 9255/2020 (exemption)

1. Allowed, subject to all just exceptions.

2. Original documents, if any, be filed within two weeks of the resumption of the normal functioning of the Court.

3. Application is disposed of.

I.A. 9256/2020 (under Order XI Rule 1 (4) Commercial Courts Act)

1. Additional documents, if any, be filed within 30 days.

2. Application is disposed of.

Signing Date:13.10.2020 07:06:56 This file is digitally signed by PS to HMJ Mukta Gupta CS(COMM) 443/2020 I.A. 9254/2020 (under Order XXXIX Rule 1 and 2 CPC)

1. Plaint be registered as a suit.

2. Issue summons in the suit and notice in the application to the defendants.

3. Learned counsel for the defendant No.2 and defendant No.3 accept summons in the suit and notice in the application.

4. Summons in the suit and notice in the application be now issued to defendant No.1 on the plaintiff taking steps through email and whatsapp, returnable before this Court on 2nd February, 2021.

5. Written statement and reply affidavit along with affidavit of admission/denial be filed within 30 days of the receipt of summons in the suit and notice in the application.

6. Replication and rejoinder affidavit, along with affidavit of admission/denial, be filed within three weeks thereafter.

7. Case of the plaintiff is that the plaintiff is a brand-owner of "BEVERLY HILLS POLO CLUB" which was established by its predecessors in the year 1981. The first registration for the trademark "BEVERLY HILLS POLO CLUB" was applied on 3 rd December, 1992 and thereafter the plaintiff has number of registrations for the said mark. The mark of the plaintiff is a device mark, that is, and the plaintiff is the owner of the registered trademark and the copyright thereof.

8. Grievance in the present suit of the plaintiff is limited to defendant No.1 which is a group company of defendant No.3 but not working as an Signature Not Verified Digitally Signed By:SANDEEP KUMAR CS(COMM) 443/2020 Page 2 of 5 Signing Date:13.10.2020 07:06:56 This file is digitally signed by PS to HMJ Mukta Gupta intermediary but is selling its own brand, copying the logo of the plaintiff as . It is thus claimed that by infringing the plaintiff's device mark as also the copyright in the logo, the defendant No.1 is selling its goods representing them to be as the plaintiff's brand. Learned counsel further states that defendant No.2 is selling the products of the defendant No.1 under the impugned logo mark by listing the same on the platform of defendant No.3.

9. None appears on behalf of defendant No.1 despite advance notice however, learned counsel for defendant No.3, that is, Amazon Seller Service Pvt. Ltd. enters appearance and states that in an earlier suit filed by the plaintiff being CS(COMM) 1015/2018 Lifestyle Equities C.V. and Ors. vs. Amazon Seller Services Pvt. Ltd., vide order dated 16th July, 2018, this Court had already directed the defendant No.3 to take down the URLs wherein the brand/logo/device mark of the plaintiff is copied including those mentioned in the plaint and as and when the plaintiff gives any further information in this regard. Learned counsel for the defendant No.3 states that since the defendant No.3 is covered by the said order of this Court dated 16th July, 2018, no fresh suit is maintainable and the plaintiff was only required to intimate the same to the defendant No.3 and hence the present suit is mala fide.

10. Learned counsel for the defendant No.2 states that the defendant No.2 has already taken down the listing and will further investigate into the matter and take down any further listing which is either on the defendant No.3's platform or any other platform.

Signing Date:13.10.2020 07:06:56 This file is digitally signed by PS to HMJ Mukta Gupta

11. Case of the plaintiff is that in the earlier suit, that is, CS (COMM) No.1015/2018, the plaintiff had impleaded parties who were selling their products on the defendant No.3's listing by infringing the plaintiff's device mark and the copyright and in the earlier suit the defendant No.1 was not a party and in the present suit, not only does the plaintiff seek delisting of the brand of the defendant No.1 from the defendant No.3's platform but also seeks the relief of injunction against the defendant No.1 which is infringing and diluting the plaintiff's mark by selling its products on a much cheaper rates representing to be that of the plaintiff.

12. Considering that the defendant No.1 is a separate entity, this Court is prima facie of the view that the present suit would be maintainable. From the averments in the plaint as also the documents filed therewith, this Court finds that the plaintiff has made out a prima facie case in its favour and in case no ex-parte ad-interim injunction is granted, the plaintiff would suffer an irreparable loss. Balance of convenience also lies in favour of the plaintiff. Consequently, till the next date of hearing, defendant No.1 and defendant No.2, their Partners, Directors, Proprietors, Shareholders, Affiliates, Licensees, Agents etc. are restrained from selling, offering for sell, advertising, directly or indirectly dealing in any products or reproducing or using in any manner whatsoever the infringing logo mark which is identically/deceptively similar to the plaintiff's logo mark "BEVERLY HILLS POLO CLUB" . In the meantime, Signature Not Verified Digitally Signed By:SANDEEP KUMAR CS(COMM) 443/2020 Page 4 of 5 Signing Date:13.10.2020 07:06:56 This file is digitally signed by PS to HMJ Mukta Gupta defendant No.3 is directed to take down the products of the defendant No.1 with the infringing logo within 72 hours of the URLs being provided by the plaintiff.

13. Compliance under Order XXXIX Rule 3 CPC be made within one week.

14. Order be uploaded on the website of this Court.

MUKTA GUPTA, J.

OCTOBER 12, 2020 'vn' Signature Not Verified Digitally Signed By:SANDEEP KUMAR CS(COMM) 443/2020 Page 5 of 5 Signing Date:13.10.2020 07:06:56 This file is digitally signed by PS to HMJ Mukta Gupta