Delhi District Court
Jetsmarter Inc vs Sandeep Sane on 6 June, 2018
In the Court of Ms. Vineeta Goyal: Additional District Judge
South District, Saket Court Complex, New Delhi.
Arbt No.: 356/17
CNR No : DLST010044652017
In the matter of :
JETSMARTER INC.
500 East Broward Blvd.,
19th Floor Fort Lauderdale,
Florida 33394 ....... Petitioner
V E R S U S
Sandeep Sane
Indjets India Pvt. Ltd.
A47, Lower Ground Floor,
Hauz Khas, New Delhi110016 ........Respondent
Date of institution : 23.06.2017
Reserved for judgment : 28.05.2018
Date of decision : 06.06.2018
Appearance : Sh. Vikas Goel, Ld. Counsel for the
petitioner.
Ms. Yamini Khurana with Sh. Sanjeet Singh,
Counsels for the respondent.
JUDGMENT
1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') has ARBT No. 356/17 Page No.1 / 13 been preferred by the petitioner namely, Jetsmarter INC. for setting aside the Arbitral Award dated 09.03.2017, passed by the Ld. Sole Arbitrator appointed by National Internet Exchange of India, New Delhi (hereinafter referred as NIXI).
2. Recapitulating the facts of this arbitral proceedings, the petitioner has preferred a complaint alleging that according to Whois database, the petitioner (complainant) learnt that the respondent have registered the disputed domain name "www.jetsmart.in" with GODADDY.com, LLC (R 101 AFIN). The disputed name was registered by Sh. Sandeep Sen on November 30, 2012, however, the disputed domain name was transferred in the name of IndJets India Pvt. Ltd. on May 06, 2015. It was alleged by the petitioner that the petitioner is a registered owner of Trade Mark "JetSmarter" in US, the European Union, the United Arab Emirates, Saudi Arabisa, Turkey, Hongkong etc. and is the owner of domain name "www.jetsmarter.com". The petitioner was incorporated as "SMART Jets INC" on November 26, 2012 and before the launch of Jet Smarter application and incorporation of the company, the beta version of the petitioner application was launched and tested among a closest group of private aviation users. In July 23, 2013, the corporate name of the company was changed from "SMART Jets INC" to "JETSMARTER INC". It is also averred that the ARBT No. 356/17 Page No.2 / 13 petitioner is the largest purchaser of third party aircrafts and it has presence in many countries and its services under the Trade Mark "JetSmarter" have been widely promoted and advertised in leading newspapers and electronic media worldwide including India. It has also acquired reputation of being an "Uber of Sky"
and "Uber of jets" as referred by various news agencies. It has earned a voluminous and impressive sale figures over the period of time which translates into enormous goodwill and reputation amongst the members of trade and public. The Trademark "JetSmarter" is registered / applied for in many countries as per details contained in para no. 17 of the claim. It is also averred that respondent's domain name 'www.jetsmart.in' is confusingly similar to the well known trade/ service mark / domain of the petitioner "www.jetsmarter.com". Just the letter 'er' have been removed to form the disputed domain name which makes the impugned domain name confusingly similar with that of the petitioner and anyone who sees the disputed domain name is bound to mistake it as a name related to the petitioner. It is also averred by the petitioner that the respondent has intentionally chosen the domain name which is deceptively similar to the petitioner in order to divert traffic to its own commercial website offering the services which are identical to the services of the petitioner which constitutes nonlegitimate infringing use since it has the effect of attracting the public to its website by trading on ARBT No. 356/17 Page No.3 / 13 the goodwill of the petitioner's trademark. The respondent registered the disputed domain name on November 30, 2012, however, the respondent's website got operation through the disputed domain name only after May, 2015 which clearly shows that from 2012 to 2015, the respondent very carefully observed the business concepts and strategies of the petitioner and started his business on the tried and tested concept of the petitioner under the disputed domain name. It is also averred that the respondent has no right / legitimate interest in respect of domain name "www.jetsmart.in" and it was registered by respondent in bad faith. The petitioner on the aforesaid grounds alongwith other grounds had requested NIXI that arbitrator be appointed and a prayer was made that the disputed domain name 'www.jetsmart.in' be transferred to the petitioner or the same be cancelled alongwith other reliefs. The Ld. Arbitrator appointed by NIXI emailed to the respondent directing him to file reply, however, respondent did not file reply and was proceeded ex parte. The Ld. Arbitrator after going through the record in the form of the complaint and its annexures, observed that the petitioner (complainant therein) has satisfied the first element of the case but has not satisfied the second and third element and thereby dismissed the complaint.
3. Aggrieved by this, the petitioner (complainant therein) ARBT No. 356/17 Page No.4 / 13 challenged the impugned award on the ground that the award passed by Ld. Arbitrator is bad in law as it suffers from non application of mind. The award has been given without any cogent reasoning. The findings by Ld. Arbitrator is contrary to the settled position "first in the market" test. The petitioner has established that he has started his services well before that of respondent, however, the Ld. Arbitrator completely ignored the said fact. The Ld. Arbitrator has ignored that despite registration of disputed domain name in November, 2012, there was no business usage till May, 2015. The law does not permit parking of domain name. It is further urged that Ld. Arbitrator has also ignored the fact that launch of petitioner's services through trial of beta version of application, jetsmarter started in August, 2012 and after successful trials, the petitioner's company "SMARTJET INC" was incorporated in November 26, 2012 whereas respondent was registered on 30.11.2012 after the incorporation of petitioner's company. Respondent being in the same industry as that of petitioner, it is obvious that he had knowledge of such venture being taken up by the petitioner and hence adopted not only the idea but also the business concept, trademark and domain name which is deceptively similar of that of the petitioner. It is further urged that the Ld. Arbitrator has failed to appreciate the fact that the respondent though have registered the disputed name prior to the petitioner, however, use of the ARBT No. 356/17 Page No.5 / 13 disputed domain name was much after the registration of disputed name which is the basic test to determine the legitimate interest. It is further urged that Ld. Arbitrator ignored the facts that the petitioner due to use of mark 'Jetsmarter' has acquired proprietary rights and earned a huge reputation and goodwill. The respondent has no legitimate interest in the disputed domain name and the respondent has also copied empty leg concept from the petitioner and is promoting its business through disputed domain name. It is also urged that Ld. Arbitrator has completely ignored the judgment cited by petitioner which clearly states that it is incumbent upon the petitioners to only build a prima facie case and burden of proof rest upon the respondent to rebut the same. However, the respondent in the present case, despite the service of complaint, did not bother to defend the matter and impugned award was an exparte award. It is also argued that Ld. Arbitrator also ignored other evidence submitted by the petitioner revealing its voluminous sale and its growth and use of the services of the petitioner availed by the customers of Indian origin.
4. The respondent contested the petition inter alia praying that impugned award passed by Ld. Arbitrator is well reasoned award. There is no infirmity in the impugned award. The respondent got its domain name registered prior to the petitioner, ARBT No. 356/17 Page No.6 / 13 hence, under no circumstances it can be stated that respondent does not have any right or legitimate interest in the domain name or that the respondent has registered it in bad faith. It is also submitted that as per clause 11 of Domain Name Dispute Resolution Policy which admittedly govern the entire arbitral procedure, the impugned award was to be merely published in full over the Internet in order to notify the same. There is no provision which requires to give signed copy of award and the present petition is time barred as the award was published on 09.03.2017. The email vide which impugned award was communicated was dated 23.03.2017 whereas the said email on page 18 of the paperbook bears the date 22.03.2017 and not 23.03.2017 as is alleged in the present petition which clearly shows that present petition is filed beyond the statutory period of 90 days.
5. Repelling aforesaid contentions, Ld. Counsel for the petitioner argued that the period of limitation starts running from the date when signed copy of the award is delivered as per section 31(5) of the Act, 1996 to the party making the application for setting it aside and no signed copy of award was sent by Ld. Arbitrator and as such the petitioner was constrained to file a copy sent by Ld. Arbitrator to the petitioner vide email dated 23.03.2017.
ARBT No. 356/17 Page No.7 / 136. I have heard arguments advanced by Ld. Counsel for parties and gone through the record.
7. At the outset, it is relevant to adjudicate whether the present petition under Section 34 of Arbitration & Conciliation Act, 1996 is within the period of limitation or not. It is the contention of the petitioner that the petitioner was able to obtain a copy of award vide email dt. 23.03.2017 and the period of limitation prescribed under Section 34 (3) of the Act, 1996 would therefore commence from that day. The petition for setting aside of award was filed on 23.06.2017 and hence, there was no question of petition being barred by limitation. On the other hand, the respondent contended that there was no provision for INDRP for sending a signed copy of award. The award was published on 09.03.2017.
8. Section 34 of the Act, 1996 provides for filing of an application for setting aside of arbitral award and subsection (3) of this section lays down the period of limitation for making such application on the term that an application for setting aside may not be made after three months have elapsed on the date on which the party making the application has received the arbitral award or if a request has been made under Section 33 of Act, ARBT No. 356/17 Page No.8 / 13 1996, from the date on which that request has been disposed off by the Arbitral Tribunal, provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of 30 days and not thereafter. Section 31 (5) of Act, 1996 requires that a signed copy of the award be delivered to each party. A conjoint reading of Section 34 (3) and Section 31 (5) of the Act, 1996, makes it clear that limitation would commence only from the date when a signed copy of award is delivered to the party making the application for setting it aside. The legal preposition is clear that if law prescribes that a copy of award is to be delivered, communicated or dispatched or sent to the parties in a particular way and in that case, the period of limitation would commence only from the date on which the award was received by the party concerned in the manner prescribed by the law. In the present case, it has been stated by the petitioner that he has received the copy of award vide email dated 22.03.2017, so the period of limitation would commence from that date whereas the present petition filed on 23.06.2017.
9. As mentioned above, the limitation period provided under Section 34(3) of the Arbitration & Conciliation Act, 1996 is 3 months. The proviso to Section 34(3) provides further period of 30 ARBT No. 356/17 Page No.9 / 13 days to the satisfaction of Court that sufficient cause prevented the applicant. Limitation period to file an application seeking setting aside of arbitral award under Section 34 of the Act is 3 months + 30 days =120 days. Though the award is dated 09.03.2017 but the signed copy of the arbitration award was received by the petitioner by email on 22.03.2017. Section 34(3) of the Act provides a period of three months i.e. 90 days and proviso to Section 34(3) of the Act provides a further extension of 30 days to the satisfaction of the Court that sufficient cause prevented the applicant. On careful perusal of the petition and the arbitral award, the 90 days period has expired on 20.06.2017 and whereas the petitioner filed a petition on 23.06.2017. It is a matter of fact that petitioner have not filed any application seeking condonation of delay in filing of petition under Section 34 of the Act, 1996, therefore, the present petition is not maintainable in view of the express language of the proviso to Section 34(3) of the Act,1996 as explained by the Supreme Court in Union of India v. Popular Construction, (2001) 8SCC 470. Moreover, even on merits, it is observed that the Ld. Arbitrator has passed the impugned award after considering all aspects of the petitioner. It is a matter of record that those proceedings remained exparte before the Ld. Arbitrator because the Ld. Arbitrator did not respond to the email communication of the arbitrator. The impugned award is a reasoned award which has logically considered the following ARBT No. 356/17 Page No.10 / 13 contentions/issues:
a) whether the conflicting domain names are confusingly similar;
b) whether the respondent has no right or the legitimate interest over the domain name;
c) whether the respondent has registered the domain name in bad faith(not in good faith) In the impugned award, the Ld. Arbitrator concluded the point of consideration mentioned at (a) above in the favour of petitioner holding that the domain name JETSMARTER.COM and JETSMART.IN are confusing. However, after holding that these are confusing, the Ld. Arbitrator examined that the claim of the petitioner and came to a conclusion that the domain name has been lawfully obtained on a prior date being 30/11/2012 by the respondent after following the due procedure in this regard.
The aggrieved party/petitioner, on the other hand, registered the domain name subsequently on 23/02/2013. There is no strength in the contention of the petitioner that BETA version of the domain name JETSMARTER was mounted in August 2012 because such a version is only at the testing stage which is not fully mounted over the World Wide Web. The domain name of the respondent became operational/put to use prior to the registration of domain name by the petitioner. I have reconsidered this finding which is ARBT No. 356/17 Page No.11 / 13 based on sound legal premise that at the time of registration of domain on 30.11.2012, there was no reputation or goodwill attached to this domain. There is no document filed by the petitioner/complainant that on 30/11/2012 when the respondent was registering the domain, there existed any bonafide right in the favour of the petitioner (complainant) that the said domain was their legal right. The petitioner (complainant) contends that the respondent was aware of the progress of industry and that is why he registered the domain name rather goes against the petitioner because in case a person has progressive thinking of the future market and he prepares himself in advance, there is nothing in law which can stop him. The financial statements submitted by the petitioner in support of right over the domain also pertain to the period subsequent to the year 2013.
10. The Ld. Arbitrator also considered the element of good faith (absence of bad faith) on the part of the respondent to register the aforesaid domain name. The factors which considered by the Ld. Arbitrator included that the respondent was prior use of an adopter of the domain name, the respondent is into the similar business, there is no evidence about existence of malafide on the part of respondent and particularly it could be reflected only if the respondent had registered the domain name after the trademark of the petitioner has acquired fame and has become ARBT No. 356/17 Page No.12 / 13 wellknown.
11. There is no infirmity of any kind in the impugned award of the Ld. Sole Arbitrator of the category/magnitude requiring any intervention particularly in view of the limited mandate provided by section 34 of the Act, 1996 and settled law which provides that it is not for the Court to take upon itself the task of being the judge of evidence by arbitrator since it is possible that Court may come to a totally different conclusion altogether based on the same facts and further the Court has no jurisdiction to sit in appeal and examine the correctness of facts on merits with reference to material produced before the Ld. Arbitrator.
12. In view of the above discussion, the petition is dismissed on the ground of delay as well as on merits.
Pronounced in the Open Court VINEETA Digitally signed by VINEETA GOYAL on 06.06.2017 GOYAL Date: 2018.06.07 11:28:41 +0530 (Vineeta Goyal) Additional District Judge03 South District / Saket Court Complex New Delhi ARBT No. 356/17 Page No.13 / 13