Calcutta High Court
Indiamart Intermesh Limited vs Ankit & Ors on 16 May, 2018
Equivalent citations: AIRONLINE 2018 CAL 351
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.1020 of 2018
With
CS No.78 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
INDIAMART INTERMESH LIMITED
Versus
ANKIT & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 16th May, 2018.
Appearance
Mr. Rudraman Bhattacharyya,Mr. S.K. Bajoria, Mr. S.
Dasgupta, Mr. Kanakendu Chatterjee, Ms. Moumita
Sarkar, Advocates for the petitioner
The Court : This is an action for infringement by four
entities who are disclosed and identifiable and against the rests
who are fictitious persons. As against them Jhon doe order has been
prayed for.
The petitioner is in the business of integrated electronic
business to business (B2B) e-commerce portal which provides an
internet based marketplace/platform with free and paid listings for
various industries/product/services especially for listing the
profile/catalogue of Small and Medium Enterprises (SME) sector,
while buyers and sellers can interact with each other for the
fulfilment of their requirements. The petitioner claims that since
its inception in the year 1996 the petitioner was India's first B2B
online directory and had successfully introduced free query
forwarding concept to familiarize India's SMEs with benefits of
internet for business promotion. The petitioner claims to have
coined and adopted a unique mark known as "INDIAMART" in and around
2
1996 for use in connection with the goods and services falling
under various categories. The petitioner has been using the said
mark regularly and uninterruptedly and marketed all over the
country and abroad through a vast business network. The mark
"INDIAMART" is registered in India in various forms as word mark,
logo mark, label mark and device mark. The earliest registration
for the trade mark "INDIAMART" dates back to 15th November, 2002 in
India. The petitioner in paragraph 9 has furnished details of the
registrations in various classes which includes word mark, label
mark and device mark. The petitioner says that in the month of
March, 2018 the petitioner came to learn that the respondents have
slavishly imitated the petitioner's unique trademark "INDIAMART" and are using the said mark in one form or the other. The petitioner has disclosed copies of the web portals of the infringing mark being using by the respondents which shows that they are imitating the word mark "INDIAMART". The petitioner says that the respondent nos.1 to 4 have incorporated the registered trade mark of the petitioner "INDIAMART" in its entirety. The petitioner contends that the domain name www.indiamart.com and the name 'INDIAMART' is the main identifier of the petitioner's platform and the adoption of the deceptively similar domain name by the respondent nos.1 to 4 by including the most prominent, integral, essential and distinctive feature of the 'INDIAMART' mark in conjunction with the generic words clearly depicts the intention of the respondent nos.1 to 4 to deceive and confuse the public to right over the reputation of the plaintiff's mark. The petitioner contends that the respondent nos.5 to 26 are Rogue Websites and believed to be involved in the illegal and unauthorised activities of making available petitioner's exclusively copyrighted data 3 publicly without petitioner's authorization. The petitioner further contends that the said respondents are using the proprietary information/data including proprietary form, presentation, customer data base and list of suppliers for sale and advertisement of their products and thereby infringing the copyright of the petitioner in relation to its literary works. The Rogue Websites of the respondent nos.5 to 26 are vehicles of infringement and their business model is designed and dedicated towards providing members of the public access to unauthorized contents. The Rogue respondents' websites earn their revenues either through sale of proprietary information of the petitioner, advertisements dependent upon user traffic or through advertisement to the very nature of internet where it is very easy to engage in illegal activities and avoid detection, internet piracy is thriving. Although some particulars of these defendants are there but it appears that these websites are fictitious and such defendants are unknown. However, they are actively involved in infringing the trade mark and copyright of the plaintiff/petitioner.
The petitioner further contends that in view of such piracy and violation of the copyright and trade mark of the petitioner, the said websites are required to be blocked. The identity, constitution etc. as regards to this unknown websites would only be known when such entities start communicating and making available the content/using/selling/offering for sale/advertising through their websites. The petitioner has accordingly prayed for John doe orders of injunction against the said respondents.
On consideration of the averments made in the petition and the materials disclosed it prima facie appears that the petitioner is the owner of the trade mark 'INDIAMART' in various forms. The 4 petitioner also prima facie appears to be the owner of the content and other information available in its portal within the meaning of Indian Copyright Act, 1957. The infringing materials appear to be slavished imitation of the trade mark of the petitioner. The respondent nos.5 to 26 appear to be Rogue Website who are exploiting the right of the petitioner unauthorisedly and illegally. The petitioner is able to establish its proprietary right in relation to its trade mark 'INDIAMART" as also the ownership of copyright with regard to the contents as claimed in paragraph 30 of the petition. The petitioner also disclosed its turn over at paragraph 10 of the plaint. The petitioner has stated that the petitioner is successfully providing services to more than one lakh paid clients and has received various awards which shows its immense popularity, goodwill and presence in the world market. On such consideration, there shall be an order in terms of prayers
(b) and (e) of the Notice of Motion.
The matter is made returnable on 18th June, 2018.
The petitioner shall communicate this order along with a copy of this application upon all the defendants who are residing abroad by DHL and/or Blue Dart and upon the rests having place of business in India by speed post with acknowledgement due and also at the e-mail addresses as mentioned in the cause title within one week from date and shall file an affidavit of service on the adjourned date.
(SOUMEN SEN, J.) pa/S.bag