Delhi High Court - Orders
Sony Interactive Entertainment Inc vs Vikash Kumar & Ors on 23 December, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 922/2022
SONY INTERACTIVE ENTERTAINMENT INC ..... Plaintiff
Through: Mr. Pravin Anand, Mr. Saif Khan,
Mr. Shobhit Agarwal and Mr. Prajwal
Hushwal, Advocates.
versus
VIKASH KUMAR & ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 23.12.2022 [This matter is listed before this Court upon directions of Hon'ble the Judge In-charge (Original Side) as the concerned Roster Bench is not holding court today] I.A. 22399/2022(u/S 12(A) of the Commercial Courts Act, 2015 on behalf of Plaintiff)
1. Having regard to facts of the present case and in light of the judgement of Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd.,1 exemption from attempting pre- institution mediation is allowed.
2. Accordingly, the application stands disposed of.
I.A. 22400/2022 (u/ Sec. 151 of CPC seeking exemption from prior/ advance 1 Neutral citation: 2022/DHC/004454.
Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 1 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:27service of the Defendants No. 1 to 7)
3. Exemption allowed, subject to all just exceptions.
4. Accordingly, the application stands disposed of.
I.A. 22401/2022 (u/ Order XI Rule 1(4) of the Code of Civil Procedure, 1908 ["CPC"] as amended by the Commercial Courts Act, 2015 seeking leave to file additional documents)
5. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
6. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per provisions of the Act.
7. Accordingly, the application stands disposed of.
I.A. 22402/2022 (u/ Sec. 151 of CPC seeking exemption from filing original/ true typed/ certified copies and vernacular copy of dim documents)
8. Exemption is granted, subject to all just exceptions.
9. Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
10. Accordingly, the application stands disposed of.
I.A. 22403/2022 (u/S 80 of CPC regarding exemption from two months notice to Government of India)
11. For the grounds and reasons stated therein, the application is allowed.
12. Accordingly, the application stands disposed of.
CS(COMM) 922/2022
13. Let the plaint be registered as a suit.
Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 2 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:2714. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement shall be filed by the Defendant within 30 days from the date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.
15. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants be filed by the Plaintiff, without which the replication 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.
16. List before the Joint Registrar for marking of exhibits on 02nd March, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
17. List before Roster Bench for framing of issues thereafter.
I.A. 22398/2022 (u/ Order XXXIX Rule 1 and 2 r/w Section 151 of CPC seeking ex-parte interim injunction)
18. Plaintiff has filed the present suit, inter alia, seeking permanent injunction restraining infringement of trademarks 'PlayStation' as well as passing off, damages, among other ancillary reliefs.
Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 3 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:2719. The case of the Plaintiff as set out in the plaint is as follows: Plaintiff is part of the Sony Interactive Group of companies including its sister company - 'Sony Interactive Entertainment Europe'. Plaintiff develops, sells, promotes, manufactures and distributes - PlayStation® series of video game consoles and related gaming products, including interactive services in relation to its products, either directly or through its affiliates and licensees. In November 2020, PlayStation 5 was released which is the latest home video game console developed by Plaintiff.
20. Plaintiff owns trademark registrations for 45 marks under 18 different classes in India, details whereof are given in paragraph No. 11 of the plaint.
Plaintiff manages and operates the website -
https://www.playstation.com/en-in/ through which customers can purchase Plaintiff's products, download games, etc. Plaintiff also operates different verified social media handles for marketing and branding endeavours, one such being - https://www.instagram.com/playstation/.
21. Plaintiff has approached this Court against certain fake websites and social media platforms, who are offering to sell 'PlayStation 5' product of Plaintiff, but are, in fact, only taking money from gullible members of public without ever delivering any PLAYSTATION product.
22. Mr. Pravin Anand, counsel for Plaintiff, states that in and around January 2022, Plaintiff's representatives in India were contacted by certain members upon receiving details of such fraud being committed by Defendants. Upon receiving such information and to ascertain the extent of Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 4 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:27 infringing activities - Plaintiff conducted an inquiry, which revealed that Defendants are acting under the name and style of one - Mr. 'Vikash Kumar' and portraying that they are authorized by Plaintiff. It was further discovered that Defendants are operating multiple domains bearing Plaintiff's trademark 'PlayStation', which are, inter alia, www.sonyplaystationindia.com; www.sonyplaystationstores.com; www.playstation.ind.in; www.sonyplaystation.in and www.playstationindia.in.
23. Mr. Anand submits that it was found out that Defendants were contacting unwary customers through social media accounts, e-mail IDs, and telephonic conversations, using identical 'PlayStation' trademarks and logo, thereby misleading them to believe that they were transacting with the authorised/ official website/ domain of the Plaintiff. Mr. Anand contends that Defendants have consciously and minutely replicated contents from Plaintiff's official Indian website with mala fide intention and created unauthorized association with Plaintiff. Defendants are also operating UPI IDs containing the trade mark of the Plaintiff 'PlayStation' and other associated marks such as 'Sony'. From the perusal of the documents, it is visible that invoices have been issued to the customers, bearing GST No. 07AAPFP748CIZU. Hence, the role of Defendant No. 18 [Central Board of Excise and Customs], is relevant in determining the true identity of the Defendants.
24. He draws the attention of this court to a comparison between the Plaintiff's website and Defendants' impugned website Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 5 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:27 [www.playstation.ind.in]. The same is extracted as under:
24.1. Plaintiff's official website - https://www.playstation.com/en-in/ 24.2. Defendant's fake website - https://playstation.ind.in
25. Mr. Anand has also produced a comparison of Plaintiff's website with that of Defendants', showing recent changes made to Plaintiff's website Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 6 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:27 which are reflecting in the impugned website of Defendant as well. Side-to-
side comparison of two websites is reproduced below:
Defendants' website Plaintiff's website Therefore, it is clear that the Defendants are replicating the contents of the Plaintiff's website with the sole intention of duping customers.
26. Plaintiff has put on record domain registrant details of the infringing domains, along with bank account/ UPI IDs to which payments have been made by the public. It is the case of the Plaintiff that whatever information available about Defendants is likely to be fictitious and false, hence the role of Defendants No. 8 to 13 and Defendants No. 15 to 18 is crucial for determining true identity of the individuals involved in the aforementioned illegal acts.
Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 7 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:2727. In light of the above, this court is satisfied that the Plaintiff has made a prima facie case in its favour and against the Defendants and irreparable loss will be caused in case no ex-parte ad-interim injunction is granted; balance of convenience also lies in favour of Plaintiff. Therefore, following directions are issued:
(i) Defendants No. 1 to 7, and are restrained from using the name/ mark 'PlayStation' and/or any other mark which is identical or deceptively similar to the trademark PlayStation of the Plaintiff, including as part of domain, email ID, social media handle or in any manner in the course of trade, leading to infringement of the Plaintiff's registered trademark PlayStation, passing off, unfair competition, tarnishing and dilution of the Plaintiffs' trademark PlayStation and infringement of Copyright. Defendants No. 1 to 7 are also directed to forthwith take down the impugned domains and social media pages etc.
(ii) Defendants No. 8 and 9 are directed to lock, suspend and take down the impugned domains www.sonyplaystationindia.com, https://playstation.ind.in; www.sonyplaystationstores.com;
www.sonyplaystation.in and www.playstationindia.in and to furnish all details and particulars relating to issuance of the said domains;
(iii) Defendant No. 10 is directed to freeze the UPI ID 'sonyplaystationstore414@okaxis' and 'playstationindia8@axl';
Defendant No. 11 is directed to freeze the UPI ID '9593302429@ybl'; Defendant No. 13 is directed to freeze the UPI ID sonyplaystationstores84@okicici, and to furnish all details before this Court in a sealed cover including records and particulars relating to opening and operating of the said UPI IDs including KYC records Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 8 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:27 of the account holders and complete account statement(s) from the date of opening, till date;
(iv) Defendant No. 12 is directed to freeze the bank account no.
881040219318 having IFSC DBSS0IN0811 and to furnish all details before this Court in a sealed cover including records and particulars relating to opening and operating of the said bank account including KYC records of the account holder and complete account statement date of opening, till date;
(v) Defendant No. 15 is directed to produce all details, records and particulars, including KYC records, call history etc. relating to opening and operating of the following phone numbers: 9836128645; 8327587164; 7439667297; 9836130167; 9593302429; and 8334871987, in a sealed cover before this Court.
(vi) Defendant No. 16 is directed to take down and block the Instagram handle https://www.instagram.com/sonyplaystationstoreindia/ and to produce all details and particulars relating to creation of the said handle and details of its operators;
(vii) Defendant No. 17 is directed to block and provide details of the operator of the email IDs [email protected] and [email protected];
(viii) Defendant No. 18 is directed to provide all details in a sealed cover before this Court pertaining to the taxpayer/Defendant No. 2, who was allotted GST No. 07AAPFP748CIZU, including PAN, Aadhaar, address proof, details of its partners/principal officers, bank accounts in the GST department's records and any further details which may be relevant.
Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 9 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:2728. List before the Roster Bench on 04th July, 2023.
SANJEEV NARULA, J DECEMBER 23, 2022 d.negi Signature Not Verified Digitally Signed CS(COMM) 922/2022 Page 10 of 10 By:NITIN KAIN Signing Date:24.12.2022 18:40:27