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Triology Solutions Private Limited vs Flipkart Internet Private Limited & Ors on 31 October, 2022

Author: Jyoti Singh

Bench: Jyoti Singh

                          $~13
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     CS(COMM) 709/2022

                                TRIOLOGY SOLUTIONS PRIVATE LIMITED ..... Plaintiff
                                             Through: Mr. Anshuman Upadhyaya                       and
                                             Mr. Naseem, Advocates.

                                                   versus

                                FLIPKART INTERNET
                                PRIVATE LIMITED & ORS.                       ..... Defendants
                                              Through: Mr. Sidharth Chopra, Ms. Shilpa
                                              Gupta, Ms. Swikriti Singhania, Ms. Surabhi Pande
                                              and Mr. Kuber Mahajan, Advocates for D-1.
                                CORAM:
                                HON'BLE MS. JUSTICE JYOTI SINGH
                                                   ORDER

                          %                        31.10.2022
                          I.A. 16724/2022 (Exemption)

1. Subject to the Plaintiff filing original, clearer, typed copies of the documents with proper margins, which it may seek to place reliance on, within four weeks from today, exemption is granted.

2. Application is allowed and disposed of.

I.A. 17580/2022 (Section 12A of the Commercial Courts Act, 2015 seeking exemption from pre-institution mediation)

3. Present application has been preferred on behalf of the Plaintiff seeking exemption from instituting pre-litigation mediation, in accordance with Section 12A of the Commercial Courts Act, 2015.

4. For the reasons stated in the application, this Court is of the opinion that Plaintiff is entitled to consideration of the application seeking urgent Signature Not Verified Signed By:KAMAL KUMAR CS(COMM) 709/2022 Page 1 of 5 Signing Date:04.11.2022 15:55:01 relief in the present case and is, thus exempted from instituting pre-litigation mediation.

5. Application is allowed and disposed of.

I.A. 16725/2022 (seeking leave to file additional documents)

6. Present application has been preferred on behalf of the Plaintiff seeking leave to file additional documents under Order 11 Rule 1(4) CPC.

7. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015.

8. Application is allowed and disposed of.

CS(COMM) 709/2022

9. Let plaint be registered as a suit.

10. Issue summons.

11. Mr. Sidharth Chopra, learned counsel enters appearance on behalf of Defendant No.1.

12. Written statement be filed by Defendant No. 1 within 30 days from today along with affidavit of admission/denial of the documents filed by the Plaintiff.

13. Replication thereto be filed by the Plaintiff within 15 days of the receipt of the written statement along with an affidavit of admission/denial of the documents filed by Defendant No. 1.

14. Upon requisite steps being taken by the Plaintiff, summons be issued to the remaining Defendants, through all permissible modes, returnable on 22.12.2022 before the learned Joint Registrar.

15. Summons shall state that written statement be filed by the remaining Defendants within 30 days from the date of receipt of summons. Along with the written statement, Defendants shall also file an affidavit of Signature Not Verified Signed By:KAMAL KUMAR CS(COMM) 709/2022 Page 2 of 5 Signing Date:04.11.2022 15:55:01 admission/denial of documents filed by the Plaintiff.

16. Replication be filed by the Plaintiff within 15 days of the receipt of the written statement. Along with the replication, an affidavit of admission/denial of documents filed by the Defendants shall be filed by the Plaintiff.

17. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines. I.A. 16723/2022 (under Order 39 Rules 1 and 2 CPC, by Plaintiff)

18. Present application has been preferred by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 for grant of ex-parte ad-interim injunction.

19. Issue notice.

20. Mr. Sidharth Chopra, learned counsel accepts notice on behalf of Defendant No. 1.

21. Plaintiff is stated to be a private limited company and a proprietor of the trademark MUUCHSTAC and its formatives and sells medicated and non-medicated cosmetic products on various online retail platforms such as Defendant No. 1.

22. The grievance of the Plaintiff in the present suit is that Defendant No. 2 is indulging in counterfeiting Plaintiff's products on Defendant No. 1's platform albeit wrongly portraying itself as one of the 'more sellers' of Plaintiff's products. The names portrayed as 'more sellers' on the website of Defendant No. 1 of Plaintiff's goods keep changing and are not constant and Defendant No. 1 authorizes them to interfere with Plaintiff's product listings.

23. Plaintiff claims ownership of copyright in the original and artistic designs of the labels, the display and photographs showing its products and therefore, claims protection against infringement of its copyright apart from passing off, unfair trade practices etc. It is the contention of the learned counsel for the Plaintiff that on account of the illegal activities of the dishonest parties, portraying themselves as 'more sellers' of Plaintiff's goods, Plaintiff loses not just business but also its proprietary rights by suffering infringement of trademarks and copyright over its intellectually created designs for packaging. Defendant No. 1 has full control and power to gate/safeguard the listings of the Plaintiff so that no other parties latch on thereto and therefore, a direction be issued to Defendant No. 1 to take down the links of all the resellers appearing on the webpage relating to Plaintiff's products.

24. Mr. Siddharth Chopra, learned counsel for Defendant No. 1, on instructions, submits that 5 URLs were communicated by the Plaintiff to Defendant No. 1 and they have been promptly taken down. He further submits that in case the Plaintiff brings any further link to the notice of Defendant No. 1, requisite action shall be taken within the timelines now fixed under the New Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022.

25. Learned counsel further submits that insofar as relief of disabling the latching feature is concerned, the larger issue is pending before the Division Bench in FAO(OS)(COMM) 282/2022 and vide order dated 27.09.2022 the Division Bench has stayed the observations made by the learned Single Judge in paragraphs 17 to 20 of the impugned order therein.

26. In view of the fact that the larger issue of the feature of 'latching on' is pending consideration before the Division Bench, no relief can be granted to the Plaintiff at this stage. However, it is open to the Plaintiff to inform Defendant No. 1 of any infringing link and needless to state that looking to the fact that the products in question are cosmetic products, Defendant No. 1 shall take prompt action to take down the links of all resellers appearing on the webpage relating to Plaintiff's products.

27. Issue notice to the remaining Defendants, through all permissible modes, returnable on 16.02.2023, before the Court.

JYOTI SINGH, J OCTOBER 31, 2022/rk Signature Not Verified Signed By:KAMAL KUMAR CS(COMM) 709/2022 Page 5 of 5 Signing Date:04.11.2022 15:55:01