Delhi High Court - Orders
M2P Solutions Private Limited vs Ashok Kumar & Ors on 7 May, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 369/2024
M2P SOLUTIONS PRIVATE LIMITED ..... Plaintiff
Through: Mr. Kaustubh Rai, Advocate.
versus
ASHOK KUMAR & ORS. ..... Defendants
Through: Ms. Radhika Bishwajit Dubey, CGSC
with Ms. Drishti Rawal, GP for D-4
& 5.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 07.05.2024 I.A. 10298/2024 (seeking exemption from pre-institution mediation)
1. 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.
2. Disposed of.
I.A. 10299/2024 (seeking exemption from advance services to D-4 & 5)
3. Issue notice. Ms. Radhika Bishwajit Dubey, CGSC, accepts notice on behalf of Defendants No. 4 and 5. Reply, if any, be filed within 4 weeks from today.
4. Re-notify on 07th October, 2024.
I.A. 10300/2024 (seeking leave to file additional documents) 1 2023 SCC OnLine SC 1382.
CS(COMM) 369/2024 Page 1 of 10This 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 08/05/2024 at 23:28:06
5. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
6. Applicant, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.
7. Disposed of.
CS(COMM) 369/2024
8. Let the plaint be registered as a suit.
9. Issue summons. Ms. Radhika Bishwajit Dubey, CGSC, accepts summons on behalf of Defendants No. 4 and 5. She confirms the receipt of paper-book, and waives the right of formal service of summons. Written statement, if any, shall be filed within thirty days from today. Upon filing of process fee, issue summons to the remaining 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 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 08 th August, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
CS(COMM) 369/2024 Page 2 of 10This 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 08/05/2024 at 23:28:06
12. List before Court for framing of issues thereafter.
I.A. 10297/2024 (under Order XXXIX Rules 1 and 2 read with Section 151 of CPC)
13. Plaintiff has filed the present suit on account of infringement of their registered trademarks by Defendants No. 1 and 2, who are unknown persons operating an infringing website.
CASE OF PLAINTIFF
14. Counsel for the Plaintiff submits the following facts and contentions, seeking urgent ex parte ad-interim relief:
14.1 Plaintiff is an API2 infrastructure company offering services that enables businesses to adopt financial services, however, Plaintiff is not in the business of providing loans. Plaintiff is the registered proprietor of the word and device trademarks "M2P FINTECH" and " "3, in Classes 9, 36 and 42.
14.2 Plaintiff owns and operates the website "https://m2pfintech.com", which has been registered on 11th September, 2020, and where the Plaintiff's trademarks are prominently displayed. Plaintiff also claims protection under the Copyrights Act, 19574, for the colour scheme, icon and tab placements in the said website. Owing to the long and continuous and extensive use of the Plaintiff's trademarks as well as trade name, as well as the excellent quality 2 Application Programming Interface 3 "Plaintiff's trademarks"4
"Copyright Act"CS(COMM) 369/2024 Page 3 of 10
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 08/05/2024 at 23:28:07 of goods and services offered by them, the said trademarks have garnered significant reputation and goodwill which is exclusively attributed to the Plaintiff.
14.3 Plaintiff's grievance in the present suit emerges from the operation of an infringing website at the domain "https://www.m2p-capital.com"5, operated by Defendants No. 1 & 2, wherein they offer loans to the general public, specifically targeting people with lower credit scores, under the guise that the loans are actually offered by the Plaintiff. The identities of Defendants No. 1 and 2, who are the owners and operators of the infringing website, are not known to the Plaintiff, however, the domain name is registered in the name of Defendant No. 3 - Aceville Pte. Ltd. 14.4 Sometime in April 2024, Plaintiff received information regarding the existence of such an infringing website, when consumers complained of being defrauded of their hard-earned money, by certain individuals posing to be representatives of the Plaintiff. These miscreant(s) would offer loans to the victims on the social messaging platform - WhatsApp, and direct them to register on the infringing website and provide personal information, including bank account details/debit card details. Once such details were uploaded on the infringing website, the victims' monies would be siphoned off from their bank accounts.
14.5 Upon investigation, it was discovered that the infringing website is prominently using Plaintiff's trademarks and has substantially copied the colour scheme, icon placement and tabs of Plaintiff's website, in an attempt to come as close as possible to the same. The comparison of the Plaintiff's website and infringing website are as follows:
CS(COMM) 369/2024 Page 4 of 10This 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 08/05/2024 at 23:28:07 Screenshots taken through a mobile phone Plaintiff's website Infringing website https://m2pfintech.com https://www.m2p-capital.com Screenshots taken through a computer Plaintiff's website Infringing website https://m2pfintech.com https://www.m2p-capital.com 5 "Infringing website"CS(COMM) 369/2024 Page 5 of 10
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 08/05/2024 at 23:28:07 14.6. The impugned website has also copied the various distinctive elements of the Plaintiff's website, which is evident from the following comparison:
Plaintiff's website Infringing website Registered mark is prominently displayed in the center of homepage of both websites The infringing website exactly replicates the language used under the logo in the Plaintiff's Website, as under:
"Fintech happens here CS(COMM) 369/2024 Page 6 of 10 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 08/05/2024 at 23:28:07 We empower fintechs, banks, and business with customs APIs for a wide range of financial services."
Further, identical font has been used in the infringing website.
The colour scheme of the log-in portion on the top right is substantially similar for both the websites.
14.7. Further, the text, layout and design of Plaintiff's website has been generated through a computer program and is both an "artistic work" and a "literary work" as defined under Section 2(c) and 2(o) of the Copyright Act, respectively. Accordingly, by virtue of Section 13 of the Copyright Act, the copyright on the contents of Plaintiff's website, including on its source code, vests with Plaintiff. Pertinently, the infringing website has a source code which is identical to the Plaintiff's website.
14.8 Through its investigation, the Plaintiff became aware that the infringing website first started its operations sometime in March 2024, and upon running a trace-route of the same, the country of origin can be traced to Hong Kong.
14.9. Plaintiff has neither developed the infringing website, nor has it authorized any entity or person, to use its marks for any investment ventures. Further, due to the deceitful and malafide defrauding activities of the infringing website, Plaintiff's goodwill and reputation in its trademarks are being tarnished, as victims are associating the infringing website as being that of the Plaintiff's and are complaining that the Plaintiff has CS(COMM) 369/2024 Page 7 of 10 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 08/05/2024 at 23:28:07 cheated them out of money under the garb of offering loans. 14.10. The intent behind the infringing website is to deceitfully adopt and use of the Plaintiff's well-known and reputed trademarks and pass off the same, as originating from the Plaintiff, in order to derive illicit gains from unsuspecting consumers. Such purposeful misrepresentation is causing irreparable harm and injury to the Plaintiff, and is irreversibly tarnishing the goodwill and reputation of the Plaintiff and its trademarks.
15. In light of the facts and contentions presented by the Plaintiff, the Court observes that the infringing website is, prima facie, designed to be deceptively similar to the Plaintiff's website. The replication of the distinct elements of the Plaintiff's website, with only minor and insignificant differences, means that any user accessing the infringing website would not be able to distinguish it from the Plaintiff's website.
16. Prima facie, Defendants No 1 to 3, have maliciously appropriated the Plaintiff's website, including the placement of logos and tabs, font, descriptions and colour scheme, to appear authentically associated with the Plaintiff, in order to lure members of the public into providing sensitive banking information, on the pretence of providing a loan from the Plaintiff, and thereafter, using the said bank information to siphon off substantial amounts of money from the victim's accounts. Such unauthorized use of the Plaintiff's trademarks, has a strong potential of causing substantial harm to Plaintiff's reputation and goodwill on account of this false association. Moreover, the general public is also likely to being duped and defrauded by the activities of the impugned website.
17. In light of the above, the Court finds that the Plaintiff has demonstrated a prima facie case of infringement of Plaintiff's trademarks as CS(COMM) 369/2024 Page 8 of 10 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 08/05/2024 at 23:28:07 well as violation of the Plaintiff's copyright claim, in the get up and layout of their website. In case no ex-parte ad-interim injunction is granted, the Plaintiff will suffer an irreparable loss; balance of convenience also lies in favour of the Plaintiff and against the Defendants No. 1 & 2.
18. Therefore, till the next date of hearing, an ex-parte injunction is granted in favour of Plaintiff with following directions:
18.1 Defendants No. 1 and 2 and any other person acting for and on their behalf, are restrained from infringing on the registered trademarks of the Plaintiff, being "M2P FINTECH" and " "; and from operating the domain name "https://www.m2p-capital.com", as well as websites to which the said domain names resolve.
18.2 Defendant No. 3 is directed to provide details of registration of the afore-noted domain name, including contact information, payment details and any other information, in its power and possession which would aid in disclosure of identity of the registrants of the websites available at "https://www.m2p-capital.com".
18.3 Defendants No. 4 and 5 [Ministry of Electronics and Information Technology and Department of Telecommunications, Ministry of Communications and Information Technology, respectively] are directed to issue appropriate directions to the telecom service providers and internet service providers to block, lock and suspend access to the infringing websites, hosted on the domain "https://www.m2p-capital.com".
19. Compliance of Order XXXIX Rule 3 of CPC be done with one week from today.CS(COMM) 369/2024 Page 9 of 10
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 08/05/2024 at 23:28:07
20. List before the Court on 07th October, 2024.
SANJEEV NARULA, J MAY 7, 2024 d.negi CS(COMM) 369/2024 Page 10 of 10 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 08/05/2024 at 23:28:07